12 November 2009

Meditate With Me: Hasan to be Charged with Premeditated Murder

The Washington Post is reporting that Major Hasan, who is now conscious and recovering in the hospital, will be charged with "premeditated murder" in a military court for his actions of open firing two handguns and killing 13 people; of whom 4 were officers, 8 were enlisted soldiers, and 1 civilian who is a retired chief warrant officer. (I hold that 14 were actually killed because one woman was pregnant with her first child). Lawyers have indicated that hosting the trial in a military court "because he is a service member" also means that investigators have evidence (to a large enough degree) to prove that Hasan acted alone. Otherwise, if he acted in company/partnership with other parties and players then a civil trial would take place. Moreover, if he were a "suspected terrorist" a military commission might be formed to investigate and prove his specified actions in that light.

The legal implications of this charge - and the due process thereof - have widespread meaning for the current debate concerning the purpose of hosting legal proceedings when facing issues of this magnitude: (a) convential civilian and criminal proceedings vs. (b) military court vs. (c) military commission. The major difference, as I see fit, is the way in which each process identifies the suspect(s) involved in the case: "a" defines the suspect in terms of the American Constitution and its binding rule of law whereas "b" defines the suspect in terms of the justice inherent in the American Constitution but alien to the common law whereas "c" deals with the suspect for a specified reason to serve justice, such as war crimes.

Thus, the conventional method holds that the suspect is granted due process according to the following public proceedings:
trial by jury;
presumption of innocence;
exposal of evidence;
cross-examination;
choice to take the witness stand as defendent;
right of appeal;
(and all that relates to such).

Accordingly, "b" holds that an established process is carried out within military ranks in order to arrive at a judgment of the suspect's actions, which is exactly what Hasan will face. What meaning does this hold for Hasan (?) - that he is not a terrorist in the eyes of the military court. What meaning does this hold for the American legal system (?) - that persons who commit such acts of horror, as described above, are within the legal perview of defining such behavior as a psychological disorder. If Hasan were a civilian who walked onto the base at Fort Hood he would be, according to these parameters, tried as a civilian with the same mental condition. The only difference in nature is that he is a "service member."

Can Hasan's actions in themselves be described as an act of terror? Given the initial evidence of his growing extremist religious ideology [i.e. witnessed in his powerpoint presentation] and social connections to certain leaders [i.e. Imam] and AQ representatives [witnessed in his computer emails and blog posting], can his intentions be explained as an act of terror against the U.S. Military and thus the U.S.A., It's Constitution, and It's People? This is why the question needs to be asked: the case against Hasan has concrete implications for the case against the civilian, and in turn, also holds dire implications for the case to be held against present and future "suspected terrorists." A military commission can, in fact, be formed to investigate Hasan in that light; however, it may be legally and socially speedy to charge him in this manner.

The House of Representatives recently passed (2009) amendments to the Military Commissions Act of 2006 issuing "suspected terrorists" greater due process rights. The Act grants each suspect the following, as the NY Times article describes:
a military lawyer to defend them;
a presumption of innocence;
a right of appeal.
Alleged co-spirator of 9/11 who once shared a room with Mohammad Atta and has been a detainee at Guantanemo Bay, Ramzi bin al-Shibh, is one person whose case is an example of applying the Act's amendments in real time.

Richard V. Meyer, a Major with the US Army and Judge Advocate and author of "When a Rose is Not a Rose: Military-Commissions v. Courts-Martial" (Oxford University Press, 2007), describes in his abstract:

"The Military Commissions Act developed a judicial system based upon that of General Courts-Martial under the Uniform Code of Military Justice. The military commissions will use many of the same personnel and share some procedures with general courts-martial, but certain aspects show them to be very dissimilar. Specifically: the revised evidentiary rules on coerced statements, hearsay and classified evidence; the lack of speedy trial rights; the absence of a formal pre-trial investigation; and the failure to apply case law precedent. These differences will have significant secondary effects on the process that are not favourable to a defendant. As a result of both the primary and secondary effects of the differences, the commissions will provide significantly less due process to unlawful combatants than the general court-martial process will provide to their lawful combatant counterparts."

To process Hasan in a military commission, he would have to be defined as an "unlawful combatant" - which would require extensive investigation into his extremist ties, if any. Therefore, given the nature of the options of proceedings available to us at this time and the nature of his actions, it is within reason to charge Hasan with "premeditated murder" in a military court. In conclusion, I think this fails to identify him as a "lawful combatant" and his actions for what they prove to be - treacherous to the American People -; and holds dangerous, far-reaching implications of ease and sensitivity for future commissions to be held for conspirators against the Constitution.

5 comments:

  1. This comment has been removed by the author.

    ReplyDelete
  2. More information to consider from the Associated Press (AP) about the current debate of bringing "suspected terrorists" to justice within the framework of the legal system and U.S. Constitution: http://apnews.myway.com/article/20091113/D9BUINUG0.html.

    White House lawyer Greg Craig, who was given the responsibility of reviewing the status of and proposing strategy for the closing of Guantanemo Prison, movement of detainees, and an overhaul of interrogations, detentions, and torture, has stepped down from his position.

    ReplyDelete
  3. Khalid SheikH Mohammad's trial with begin sooon in NYC, as the Wall Street Journal and NY Times reported this morning: http://online.wsj.com/article/SB125811122555346969.html?mod=WSJ_hpp_LEFTTopStories;
    http://www.nytimes.com/2009/11/14/us/14terror.html?hp.

    The Financial Times is reporting that President Obama is beginning talks with Chinese leaders, and plans to highlight everyone's role in the war in Afghanistan: http://www.ft.com/cms/s/0/7f2bf2d0-cf78-11de-b876-00144feabdc0.html?nclick_check=1.

    The process of closing the detention center rquires dealing with 75 remaining detainees, as noted in this article by the Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2009/11/13/AR2009111300740.html?hpid%3Dtopnews.

    ReplyDelete
  4. The Thunder Run has linked to this post in the blog post From the Front: 11/13/2009 News and Personal dispatches from the front and the home front.

    ReplyDelete
  5. The new legal counsel appointed to the White House position is Bob Bauer, known predominantly as President Obama's personal lawyer and partner at Perkins Coie. Read the breaking story by the Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2009/11/13/AR2009111301138.html?hpid=topnews.

    Because he will be conducting important reviews of our national security methods and measures as well as making decisions that have implications for our Constitution, I encourage you to read more about Bauer's biography on the Perkins Coie website: http://www.perkinscoie.com/rbauer/.

    For fun, if you want to read Jack Bauer's biography, agent in the hit television series 24, visit here: http://en.wikipedia.org/wiki/Jack_Bauer!

    ReplyDelete