FORT HOOD — Though unable to present his “defense of others” strategy, Maj. Nidal Hasan will have a chance to tell a jury the reason he allegedly opened fire on fellow soldiers in 2009, a judge ruled Friday.
Hasan has repeatedly sought to defend his alleged attack on soldiers as a protection of Taliban fighters in Afghanistan. Since ruling the strategy held no legal merit, it appeared Hasan would never be able to tell jurors why he allegedly carried out the attack on post that killed 13 and wounded 32.
But in the final moments of Friday’s pretrial hearing, presiding judge Col. Tara Osborn told Hasan he would be able to say whatever he wants should he choose to testify in his own defense.
“You can say how you did it, you can say why you did it,” Osborn said.
Hasan quickly asked Osborn to clarify the statement. Osborn replied that while Hasan could testify to his motivations and state of mind, she would instruct the jury to dismiss any statements justifying the killings as protecting fellow Muslims from “illegal” wars as null.
“If you testify to the defense of defense of others, I will instruct the jury that it is not recognized as a matter of law,” Osborn said.
Opening statements in the 42-year-old Army psychiatrist’s court-martial begin Tuesday. The court scheduled one final pretrial hearing Monday to seat the jury and consider pending motions.
Hasan could face the death penalty if a jury of 13 officers unanimously finds him guilty of charges of premeditated murder.
Case against Hasan
While the nature of Hasan’s defense appears nebulous and unknown — the major has struck a lengthy witness list in favor of calling only two unknown witnesses — the government’s extensive case against Hasan has taken shape as the court has reviewed the admissibility of hundreds of pieces of evidence in the past few weeks. Prosecutors have a list of more than 250 witnesses and intend to call to the stand each of the 32 men and women wounded in the attack.
The outset of testimony will consist of witnesses setting up the facts of the crime. It will likely include the most graphic evidence, including numerous autopsy photos and a bloody crime scene video depicting the Soldier Readiness Processing Center moments after the attack occurred.
The government will try to prove premeditation by showing that Hasan planned the attack and harbored deepening disdain for the U.S. brought on by a progression toward radical Islam.
Prosecutors plan to prove Hasan chiefly targeted soldiers by showing that of the 45 people shot at or wounded during the mass shooting, only two were civilians.
One civilian, retired Chief Warrant Officer Michael Cahill, was killed while attempting to throw a chair at the shooter. The other, former Fort Hood police officer Kimberly Munley, had fired her service weapon at Hasan when he allegedly shot her.
They will then try to prove motive by giving a history of his movement toward becoming a Muslim extremist, a tactic toward which the judge has been less receptive.
“The panel should not be presented evidence where they should infer that because Maj. Hasan is Muslim, he committed these crimes,” Osborn said Friday.
Osborn warned prosecutors that some of the earliest evidence of Hasan’s progression toward Islamic extremism may not be admissible. The unsettled evidence includes reports from Hasan’s residency at Walter Reed Army Medical Center and in a military medical school that could be construed as sympathetic to suicide bombers and Osama bin Laden.
She called into question emails between Hasan and Anwar al-Awlaki, a key figure in al-Qaida in the Arabian Peninsula killed by a drone strike in 2011.
However, she ruled prosecutors can present evidence showing Hasan’s Internet searches for terms like “jihadi Muslims” and “Taliban” became more frequent after receiving orders to deploy to Afghanistan.
The judge also ruled the former Fort Hood police officer who critically wounded Hasan will be required to testify despite a medical condition that prevents him from speaking.
Osborn ruled that Mark Todd will be able to testify through other means, possibly by typing or writing answers to questions.