Why Fort Hood shooter still awaits trial 3 years later

By Jack Minor

A new judge in the case of Nidal Hasan, who’s accused of screaming “Allahu Akbar” and gunning down fellow soldiers at Fort Hood, has decided to ignore an Army regulation.

Col. Tara Anderson, replacing Col. Gregory Gross as judge, said that although the Army requires Hasan to be clean-shaven, she would not challenge Hasan’s decision to disobey the regulation.

“I’m not going to hold that against you,” Anderson told Hasan.

The beard is just one of many instances in the case in which the military has relinquished authority.

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Hasan, a major and Army psychiatrist at Fort Hood, is accused of  walking into the Soldier Readiness Center of the base Nov. 5, 2009, and opening fire on his fellow soldiers. Thirteen died and nearly 30 more were injured.

The attack stopped after Hasan himself was shot and paralyzed.

A survivor reported Hasan shouted “Allahu Akbar,” or “Allah is greatest,” a phrase commonly  uttered by jihadists prior to carrying out an attack. The Fort Hood attack was the worst shooting on an American military base.

Hasan had been on federal officials’ radar screen for at least six months prior to the shooting over postings he made on the Internet. He likened a suicide bomber who kills women and children to a soldier who throws himself on a grenade to give his life in a “noble cause.”

Intelligence officials also intercepted at least 18 emails between Hasan and the radical American-born cleric Anwar al-Awlaki. Hasan told al-Awlaki in one of the emails, “I can’t wait to join you” in paradise. He also asked al-Awlaki whether it was appropriate to kill innocents in a suicide attack, when jihad was acceptable and how to transfer funds without attracting government notice.

In spite of this, Attorney General Eric Holder declined to press terrorism charges against Hasan. Instead the government has labeled the shooting as a case of “workplace violence.” During a memorial service for the victims, President Obama never once used the word terrorism.

The designation has prevented survivors and the victim’s families from receiving Purple Hearts and being able to obtain combat-related special compensation.

Staff Sgt. Shawn Manning was shot six times in the attack, yet he is denied the same benefits a soldier shot in a similar action overseas would receive.

Fellow soldiers that day “were killed and wounded by … somebody who was there that day to kill soldiers, to prevent them from deploying,” Manning said. “And if that’s not an act of war, an act of terrorism, I don’t know what is.”

Survivors and their family are forced to watch while Hasan continues to receive a paycheck and medical benefits from the military. Three years later, Hasan still has not been court martialed for the shooting.

Col. John Eidsmoe, a former JAG officer and author of “Historical and Theological Foundations of Law,” said military justice normally moves much swifter.

“It is definitely not normal for capital cases in the military to take three years to come to trial,” Eidsmoe said. “In the civilian realm, criminal defense attorney may have 100 or so cases they are working on at any given time. In the military you maybe have half a dozen you working on. This gives you more time to devote to the cases you working on, making the whole system move much faster.”

On Dec. 13, Army Sgt. Vincinte Jackson was convicted and sentenced to life in prison for killing 28-year-old Spc. Brandy Fonteneaux, a fellow soldier at Fort Carson in Colorado. The murder occurred on Jan. 8, 2012.

In July 2011, Sgt. Anthony Silva was shot to death in Denver. Silva was spending the evening at a motel and was waiting for his father to pick him up. Silva was shot and killed by Ricky Scott, who was convicted on one count of first-degree murder on Dec. 14, a year and a half after the shooting.

In July, the wrinkle over Hasan’s beard developed. During his time in the Army he was clean shaven. However, now that he was in jail for allegedly killing his fellow soldiers, Hasan claimed he has the right to wear a beard, in direct contradiction of Army regulations which require a soldier to be clean shaven unless there is a medical reason.

Hasan told Gross, the judge then hearing the case: “Your honor, in the name of almighty Allah, I am a Muslim. I believe that my religion requires me to wear a beard.”

Gross ruled that despite his claim, Hasan did not have a religious right to wear a beard and must shave it off. However, he would not enforce his ruling until after Hasan had exhausted all of his appeals.

Earlier this month, an Army appeals court took the unusual step of removing Gross from the case. The U.S Court of Appeals for the Armed Forces announced in its ruling it was removing Gross because he showed an appearance of bias in his treatment of Hasan.

However, the court refused to rule on the merits of Hasan’s claim, stating that if the new judge found it to be an issue, Hasan could start the appeals process all over again, which could delay the trial for months, or even years.

“Should the next military judge find it necessary to address (Hasan’s) beard, such issues should be addressed and litigated anew,” the judges wrote in their ruling.

On Dec. 18, Osborn once again affirmed that Hasan was violating Army regulations by sporting his beard. However, she has also indicated Hasan will not be facing any consequences for violating military regulations.

At the hearing, Osborn asked Hasan if he understood that by wearing the beard he was in violation of Army grooming standards. Hasan responded, “Yes.”

“I’m not going to hold that against you, but some people on the panel may have issues,” she said.

At the hearing the defense made several motions for Osborn to consider. Among them was a request for change of venue from Fort Hood and an objection to testimony from a terrorism expert who said Hasan is a “home grown terrorist.”

Hasan’s next court appearance is expected sometime in January when Osborn will decide when pre-trial motions will be held. A date for the start of the court martial still has not been set.

The delays over the beard issue have caused some to say Hasan is making a mockery of the military legal system.

“If he were not a Muslim and murdered 13 people in cold blood he would long since have been tried and convicted by now,” said Robert Spencer, founder of Jihad Watch. “This ridiculous haggling over his beard is part of the general policy of the United States government not to offend Muslims and accommodate them in every way possible.”

Spencer went on to say the Army’s deference to Hasan on the beard issue is particularly appalling because it was his own piety that led him to kill his fellow soldiers.

“This accommodation is particularly unconscionable because Hassan said he has to have the beard because of his Muslim faith. But he also by his own account murdered 13 people because of his Muslim faith,” Spencer noted. “Because of this why should we be giving him any accommodation because of his faith? This would be like making sure a Nazi guard at a concentration camp in prison was later supplied with a copy of Mein Kampf along with a swastika emblem.”

Some have questioned why Hasan had no problems being clean shaven before the shooting and why it only became an issue recently. Spencer explained the reason is Hasan wants to make himself a martyr in the eyes of the Muslim world.

“The martyr goes into paradise in the condition in which they die. A beard is a sign of a Muslim’s piety, and if he doesn’t have it, it is a serious mark against him,” Spencer explained. “He will consider himself to be an Islamic martyr if he is executed for his crimes or even if he dies in prison for his crimes. This is why he has attempted to plead guilty on several occasions.”

Under military law, an individual is not allowed to plead guilty in any case involving the death penalty.

The American court system has increasingly been granting deference to Muslims during legal proceedings.

Mark Wetsch, a Muslim convert charged with 13 counts of bank robbery in Minnesota, objected to a hearing in July saying it fell on the first day of Ramadan. According to Wetsch, this meant he should not be “engaging in conflict and argument” and a hearing in which he would be asked to respond to government allegations would constitute conflict and argument. The judge granted the request.

A similar request was granted in the U.S. military trial of five al-Qaida terrorists accused of being involved in 9/11 attacks on American soil. In May, the judge granted a request by the Muslim jihadists to postpone a hearing scheduled during the week of Aug. 8 because it was near the end of Ramadan.

The defendants’ lawyer, James Connell III, stated that “the last 10 days of Ramadan commemorate the night God – Allah – revealed the Holy Quran to the prophet Mohammed. These 10 days are the most holy period of the Muslim calendar and are typically observed by fasting, prayer, and seclusion.”

While rising in the presence of judges has been a centuries-old tradition, an appeals court laid aside the tradition in deference to a Muslim woman charged with funding a Somali terrorist organization.

Amina Farah Ali refused to rise during multiple court appearances despite being warned by Minnesota Judge Michael Davis that she was required to do so. Ali said that because Muhammed told his followers they did not need to stand in his presence, she did not need to honor the judge by standing. Davis subsequently issued her contempt citations.

But an appeals court overturned the citations, stating that requiring Ali to rise in the presence of the judge “substantially burdens the free exercise of religion” for her.

Spencer says the appeals court ruling is actually a ruling against the authority of judges over Muslims in the American legal system.

“Muslims such as Ali don’t stand for the judge because they don’t accept the validity of American law. By allowing it, the court is undercutting its own authority and giving credibility to the proposition that they really don’t have jurisdiction in the very case they are trying.”

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