• September 30, 2014

Judge denies Hasan’s strategy

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Posted: Saturday, June 15, 2013 4:30 am | Updated: 2:13 pm, Thu Jan 23, 2014.

FORT HOOD — A military judge Friday rejected Maj. Nidal Hasan’s legal claim that he killed 13 and wounded dozens in 2009 to protect the leaders and members of the Taliban in Afghanistan.

Col. Tara Osborn ruled Hasan will not be able to enter any evidence addressing a “defense of others.” It is a legal strategy akin to self-defense justifying violent actions if a defendant can prove a third party was in imminent danger.

“It fails as a matter of law,” Osborn said. “None of (the victims) in Fort Hood, Texas, posed an immediate imminent threat to those in Afghanistan.”

Osborn dismissed Hasan’s defense, stating that the legitimacy of the war in Afghanistan played no part in a criminal court-martial. She also ruled that as a uniformed soldier, he had no justification to kill other U.S. soldiers.

Hasan replied that he objected to the ruling. Hasan is accused of carrying out the Nov. 5, 2009, mass shooting on post. He is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder and could be executed if convicted.

The judge made no ruling on whether Hasan, a 42-year-old Army psychiatrist, will be allowed a three-month delay to the start of his trial. However, Hasan’s first request for a continuance was based in part on the validity of the “defense of others” when he told the court he needed time to prepare that tactic.

A former lead prosecutor for the 101st Airborne Division and military law expert said Osborn’s ruling was “absolutely in the right,” and will likely lead to the start of Hasan’s court-martial.

“This thing is moving now,” said Geoffrey Corn, a professor at the Southern Texas College of Law. “He can try his best to be a roadblock, but he’s going to get steamrolled every time.”

‘Gross error’

Hasan’s former defense attorney John Galligan disagreed, calling it a “gross error.” Galligan, a retired colonel and criminal defense attorney based in Belton, has continued to advocate on Hasan’s behalf despite the major dismissing him from the case in 2011.

Galligan said Friday’s ruling violates Hasan’s constitutional right to testify in his defense if he is prohibited from telling the court why he allegedly opened fire at the Soldier Readiness Processing Center.

“She’s effectively denied him any opportunity to put on any defense,” Galligan said. “She’s essentially said you’ll never hear from Nidal Hasan. It’s a major, major error.”

Galligan said Hasan’s political motivations were integral to his defense and are critical in determining the facts of the Fort Hood shooting.

Evidence has already been presented during hearings in 2010 indicating that Hasan, an American-born Sunni Muslim of Palestinian descent, inched toward Islamic extremism in the years leading up to the shooting.

An FBI report showed Hasan communicated with al-Qaida terrorist Anwar al-Awlaki, exchanging emails with the cleric in which he questioned whether attacking soldiers could be justified. During the attack, witnesses said they heard Hasan yell “Allahu Akbar,” Arabic for “god is great.”

“This has become a rubber-stamp presentation of the prosecution’s case,” Galligan said. “His case will have to be appealed.”

The next hearing is scheduled for Tuesday. The court is expected to hear more arguments about the extent of assistance by Hasan’s standby counsel.

The three military lawyers detailed to Hasan have asked to withdraw from the case. Osborn previously denied a similar motion by defense attorney Lt. Col. Christopher Martin.

Multiple members of Hasan’s legal team also have asked to be removed from the case since the judge granted Hasan’s request to represent himself. The judge did grant the release of a paralegal and supporting attorney Friday.

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