Accused Fort Hood shooter Maj. Nidal Hasan will appeal a federal court ruling allowing surveillance evidence obtained through classified means to be used in trial.
An Ohio attorney representing Hasan filed notice with the U.S. Court of Appeals for the Fifth Circuit asking the government to release evidence gathered through the Federal Intelligence Surveillance Act.
A federal judge ruled on Aug. 14 that the defense cannot have access to that evidence, stating that its publication could cause a breech to national security.
Hasan’s former defense attorney John Galligan said the evidence is likely emails between Hasan and al-Qaida operative Anwar Al-Awlaki. Those emails have largely been made public in a report by the FBI about the Nov. 5, 2009, mass shooting on post.
The emails were obtained by the FBI’s Joint Terrorism Task Force in San Diego. Though they contained statements from Hasan that indicated a possibility of religious extremism, the FBI never interviewed him.
Galligan said prosecutors likely would use the messages to paint Hasan as a terrorist. If found guilty of 13 charges of premeditated murder, terrorism could be used as an aggravating factor to sentence Hasan to death.
Hasan will be back in the Fort Hood court on Thursday for a pretrial hearing.