Steve Russell : Unfriendly Fire at Fort Hood

Police car outside judicial hearing at Fort Hood, Texas, July 9, 2013. Photo by Tony Gutierrez / AP.

Workplace violence:
Unfriendly fire at Fort Hood, Texas

I am gobsmacked by a particular elevation of form over substance being practiced before our eyes by the Army.

By Steve Russell / The Rag Blog / July 16, 2013

The Rag Blog's Steve Russell -- a Texas trial judge by assignment and a member of the Cherokee Nation of Oklahoma -- will hold a book signing event at Austin's Black Star Co-op Brewpub, Thursday, July 18, 2013, from 4:30-7:30 p.m. He will sign his three books -- Sequoyah Rising: Problems in Post-Colonial Tribal Governance, Wicked Dew, and Ceremonies of Innocence: Essays from the Indian Wars -- and all three books will be available for purchase. The Black Star Co-op is located at 7020 Easy Wind Drive, Austin, Texas.

Meanings vary when people repeat that things can be done “the right way, the wrong way, or the Army way.” “The Army way” may represent teamwork so instinctive that orders are not necessary. For most GIs, “the Army way” is elevation of form over substance.

I am gobsmacked by a particular elevation of form over substance being practiced before our eyes by the Army. The substance began on November 5, 2009. My son was due back from his second tour in Iraq any day and the question in the family was whether he would be home for the holidays.

Ft. Hood is covered by local media in Austin, so when Maj. Nidal Malik Hasan walked into the Soldier Readiness Processing Center and opened fire, I was probably paying attention before the firing stopped. Where was Paul? Iraq? Kuwait? Or was he in SRP, though which every soldier passes being deployed or coming home?

My son was not in SRP, but of those who were, 13 died. The victims were soldiers ranging in age from 21 to 56 and in rank from PFC to Lt. Colonel, as well as one civilian, 62 year old Michael Cahill, who died trying to stop the shooter. The youngest soldier killed, PFC Francheska Velez, was pregnant, and the fetus also died. Another 31 soldiers were wounded by gunfire, along with civilian police Sgt. Kimberly Munley, who was wounded while exchanging gunfire with the shooter.

The shooter was seriously wounded in the gunfight with civilian police. While waiting for him to recover so he could be put on trial for mass murder, we learned that Maj. Hasan admired the teachings of Anwar al-Awlaki, the New Mexico born imam who had presided at his father’s funeral. Hasan and al-Awlaki had substantial email communication before the killings at Ft. Hood.

In March 2010, al-Awlaki released a statement complaining that the Obama administration was failing to credit him properly, saying in part:

Until this moment the administration is refusing to release the e-mails exchanged between myself and Nidal. And after the operation of our brother Umar Farouk the initial comments coming from the administration were looking the same -- another attempt at covering up the truth. But Al Qaeda cut off Obama from deceiving the world again by issuing their statement claiming responsibility for the operation.

The “brother” referred to was Umar Farouk Abdulmutallab AKA “the underwear bomber” because he was inspired by al-Awlaki to attempt blowing up an airliner but succeeded only in lighting up his tidy whities.

A month later, to a chorus of criticism, Obama placed al-Awaki on the CIA “kill list.” His father filed a lawsuit to get him removed from the “kill list” on due process grounds, but the case was thrown out because the father lacked standing. al-Awaki himself would, of course, have had standing, but if he came to court, the reason he was on the list would disappear.

When al-Awaki was not directly counseling on how to kill Americans, he was overseeing the editing of Inspire, Al Qaeda’s English language organ where the Boston Marathon bombers allegedly read, “Make a Bomb in the Kitchen of Your Mom.” The criticism of Obama fired up again when a CIA drone strike nailed al-Awaki in September of 2011.

At the time of the drone strike, al-Awaki was hiding in the lawless areas of Yemen and a Yemeni court had issued a warrant for his arrest on terrorism charges. Obama is supposed to have violated his rights by putting him on the “kill list,” but the way I read the law, a violent felon who poses a continuing danger and cannot be arrested can be killed.

This is the case without regard to citizenship and across national borders in the sense that a violation of state sovereignty is a beef between governments, not between the U.S. government and the individual targeted. Further, the standard for deciding the fact of the matter -- that he’s a continuing danger and can’t be taken into custody -- is not “beyond a reasonable doubt.” It’s “probable cause,” or what a reasonable person would believe about the facts as they sit. If the target wants more facts developed and the reasonable doubt standard met, then he can come to court, where more process is due.

Therefore, the only reason there’s any more legal or moral problem with the drone strikes than with the cops shooting a fleeing robber or rapist is the secrecy. You can’t turn yourself in if you don’t know you are wanted. But secrecy was not an issue in al-Awaki’s case. I’m sure he considered himself a soldier who died on an active battlefield, which is highly ironic given that the whole argument about the unlawfulness of drone strikes turns on claiming there was no active battlefield where he was killed and therefore he was simply assassinated.

But I digress.

After Hasan became physically able to come to court, the first military judge assigned to the case elevated form over function by engaging in a six-month battle with a dead man over shaving his full fundamentalist Muslim beard.

Nidal Hasan is a dead man rolling, since he can no longer walk as a result of his gunshot wounds. Apparently proud of his “accomplishment, “ he wished to plead guilty, but the Army won’t allow a guilty plea in a capital case and the prosecutors won’t waive the death penalty.

Those of us who oppose the death penalty can’t make an exception for Hasan like most of us did for Osama bin Laden, because Hasan would not be a hostage magnet if allowed to live in custody. But the posture of the case is what it is, and if you want to attack the death penalty, Nidal Hasan is not your poster child.

Since there is no question that Hasan did the shooting, the lawyers tasked with defending him must bring forward evidence of his mental state -- a complete defense if he’s legally insane or a mitigating circumstance if he’s sane. Understandably, Hasan does not wish to litigate his mental state, so he fired his lawyers.

Hasan informed the new and more goal-directed judge that he wishes to argue that his conduct was justified as “defense of third parties.” What third parties? Mullah Omar and the rest of the Taliban.

This will not fly because the soldiers murdered were not about to harm Mullah Omar, among many other reasons. One of the more interesting reasons is that a defender of a third party can have no more right to use deadly force than the third party would have had. Nidal Hasan is stretching for some way to put the Afghanistan war on trial, since the force he was allegedly defending against would have to be “unlawful.”

U.S. soldiers are taught that they must refuse unlawful orders, and I remember no war in my lifetime when somebody did not refuse deployment for the purpose of making a court rule on the legality. They lost, but they got to make the argument. I don’t think you can raise that argument as a justification for shooting fellow soldiers.

I understand why we generally don’t let people plead guilty in a death penalty case. We want to see the evidence. We don’t want innocent persons executed even if they volunteer to save guilty persons. In the Hasan case, that can’t happen.

Not accepting his guilty plea turns the “trial” into a slow motion guilty plea and a political circus. I’m OK with the political circus part, having been the ringmaster of several. It’s the nature of our system that trials are political, even though many of us try to pretend otherwise. But I am offended by a slow motion guilty plea.

Meanwhile, the Army has categorized the shootings as “workplace violence” rather than terrorism. There are substantial benefits for the families of soldiers killed or wounded in combat. These benefits are not available to the soldiers who signed up to fight the “war on terror” and then got shot by a turncoat whose stated purpose was to protect the enemy from his fellow soldiers on the instructions of a radical imam who repeatedly called killing Americans a religious duty.

Had my son been in the SRP that day, I would have to sue the Army for the good of my daughter in law and my grandchildren. Because he wasn’t, I’m just another opinion from the cheap seats when I say that respect for the law is the right way, but denying benefits to the victims’ families is the wrong way, and this entire process is making a mockery of the Army way.

[Steve Russell lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Steve was an activist in Austin in the sixties and seventies, and wrote for Austin’s underground paper, The Rag. Steve, who belongs to the Cherokee Nation of Oklahoma, is also a columnist for Indian Country Today. He can be reached at swrussel@indiana.edu. Read more articles by Steve Russell on The Rag Blog.]

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