The military judge asked Maj. Nidal Hasan if he has evidence to support his “defense of others” strategy, hinting that it could be thrown out.
Such a defense requires Hasan to prove the 2009 killings were necessary to protect others from immediate harm or death, and military law experts not involved in the case said the judge is unlikely to allow him to present that defense.
“A ‘defense of others’ strategy is not going to work when you’re at war and the ‘others’ are enemies of the U.S.,” said Jeff Addicott, director of the Center for Terrorism Law at St. Mary’s University in San Antonio. “And what makes it more egregious is that he targeted medical personnel whose primary purpose was to heal, not to kill.”
While Hasan’s argument may have been a bit more sympathetic if he said the rampage was necessary to protect Muslim women and children, that defense strategy does not apply in a war situation, said Lisa M. Windsor, a retired Army colonel and former judge advocate. Still, it’s unclear what Hasan may present because attorneys are not allowed to give evidence themselves, said Windsor, an attorney specializing in military law.
The court-martial had been scheduled to start with jury selection Wednesday, two days after Hasan was granted his request to represent himself. Hasan, an American-born Muslim, then requested a three-month delay to give him more time to prepare his defense.
The military judge, Col. Tara Osborn, was to rule Wednesday on Hasan’s trial delay request after hearing more about his defense. Osborn said jury selection would now start no earlier than Monday.
Hasan, 42, faces the death penalty or life without parole if convicted of 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the 2009 attack at the Army post in Texas.
At a hearing Tuesday, Osborn asked what evidence Hasan had to support his defense. Hasan said Taliban leader Mullah Omar and “leadership of the Taliban in general” were in immediate danger from American troops on the Texas Army post, because “the U.S. has attacked and continued to attack the Taliban.”
Osborn quickly interrupted Hasan, a day after telling him that he could not make speeches or try to testify when questioning witnesses.
Retired Staff Sgt. Shawn Manning, shot six times that day, said five of the 13 killed at Fort Hood were in two units that had been training to help soldiers deal with stress and mental health issues. Deployed soldiers in those units are allowed to fire their weapons only in self-defense, Manning said. Hasan was to deploy to Afghanistan with one of those units.
But not everyone killed was about to deploy — to Afghanistan or anywhere else. Pvt. Francheska Velez, who was pregnant, had just returned from Iraq. Michael Grant Cahill, who tried to stop the gunman with a chair, was a physician assistant working in the building.
“It makes me sick to my stomach” that Hasan would use such a defense strategy, Manning said.
Witnesses have said that after lunch on Nov. 5, 2009, a gunman wearing an Army combat uniform shouted “Allahu Akbar!” — “God is great!” in Arabic — and opened fire in a crowded medical building where deploying soldiers get vaccines and tests. Witnesses said the gunman fired rapidly, pausing only to reload, even shooting at some soldiers as they hid under desks and fled the building.
Government documents show that in the years before the shooting, Hasan told some colleagues that the U.S. was at war with Islam. In some emails to a radical Muslim cleric, Hasan indicated that he supported terrorists and was intrigued with the idea of U.S. soldiers killing comrades in the name of Islam.