Nidal Hasan: Let the law apply

On the surface, there is legal basis not to call Nidal Hasan a terrorist. Digging deeper reveals flawed thinking. Photo: Nadal Hasan/AP photo

WASHINGTON, August 11, 2013 – Hope exists for adherence to all laws stemming from Nadal Hasan’s murderous, terrorist acts.

In what a Senate report called  “the worst terrorist attack on U.S. soil since September 11, 2001,” Army Major Nadal Hasan, a United States citizen, killed 13 people and injured 32 more at Fort Hood Military Base in Houston, Texas on November 5, 2009.

Prior to the shooting, Hasan expressed anti-American views. The killings were motivated by allegiance to a militant terrorist group. He shouted Islamic statements declaring his “God was the Greatest” during the attack, and after, he said that he acted in the defense of Islam and Taliban leadership. There was more proof.

President Obama told the nation hours after this massacre that the victims “would be properly cared for.”

Despite all of this, the FBI, the Department of Defense and the U.S. Senate all refused to label the massacre as “terrorism,” and instead characterized the shootings as “workplace violence.”

Hope exists for the application of two specific laws in this case. First, if, after his trial concludes, Hasan’s acts are declared terrorist, laws designed to help his victims get appropriate benefits and honors will kick in. Second, if Hasan is given the death penalty by his jury, the law requires the President to authorize it. He should do so.

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For almost four years now, because of the “workplace violence” characterization, the surviving victims have had lower priority access to medical care, and fewer financial benefits. Further, the characterization has deprived both those killed and the survivors from being awarded the Purple Heart, a military decoration given to those injured or killed while serving our country.

The terrorism designation was not applied as argued by the government because, if applied, Hassan would be unduly prejudiced and could not receive a fair trial.   

Calling Hasan a terrorist would arguably allow his prosecutors to use that term, and it would enable him to claim unfair “judgment before trial begins.” That Hasan seems intent on being convicted and receiving a death sentence does not change this analysis in the larger scheme of things.

In the run-of-the-mill case, the legal analysis concerning the use of evidence requires first determining if doing so is relevant; and second, if the prejudicial effect of using that evidence would substantially outweigh the probative value of the evidence on the issues in controversy.

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Here, is it relevant to the prosecution that Hasan was a terrorist when prosecuting him for murder? The answer is that it is not relevant. Thus the inquiry ends and the prosecution should not be allowed, if there is prejudice, to call Hasan a terrorist, because it is not relevant or needed to convict him. The prosecution has to prove a crime occurred. The prosecutors do not need to label Hasan a terrorist to convict him.

The elements necessary to prove a crime occurred are: 

  1. There was a criminal act, and
  2. There was intent. That is, the defendant intended to do what was done, or otherwise acted so recklessly that a lack of intent is not required.

Taking the evidentiary discussion above one step further, what if it could be said that prosecutors needed to call Hasan a terrorist to convict him? The legal inquiry is then “does the prejudicial effect of labeling him a terrorist substantially outweigh the probative value of labeling him a terrorist?”

In the run-of-the-mill case, the answer would be yes. Where evidence is so prejudicial that it clearly tilts the balance in a trial, and where it is not needed to allow for a fair verdict, the evidence should not be used. Most would agree that calling someone a terrorist would be very prejudicial. Here, the answer is no. There is no prejudice to Hasan by labeling him a terrorist.

Therein is the problem with the government’s stated “fairness” concerns with this case.  Because of adherence to well-grounded legal principles, the terrorist label was not used at trial. The facts of this case, however, transcend the concerns. 

The evidence of what occurred during the killings, specifically Hasan’s utterances, together with Hasan’s statements about only wanting to kill military personnel in defense of the Taliban, makes his being a terrorist part of the entire discussion of what occurred. Hasan is reveling in his position and seemingly is looking for redemption in his all but certain conviction and probable death.

In light of the entirety of the facts and the understanding of what occurred and why, labeling Hasan a terrorist is not going to prejudice him, particularly because he is in a military tribunal. Whether the label is used or not, the cumulative evidence will place it upon him.  Thus, there is no reason to bar the label and allow his victims the help and honors they deserve.

Fortunately, something not done today can be done tomorrow.

Let us hope that after Hasan’s trial is over, the terrorism designation will be made, and that long overdue benefits and honors will be given. Perhaps the civil lawsuit filed last November will provide at least the benefits. The lawsuit is seeking damages on behalf of 83 Fort Hood survivors and victims’ families and it alleges that the government has treated them in a manner “substantially inferior to the treatment given other terror casualties.”

Hope for adherence to another legal concept will depend upon Hasan’s jury and the President of the United States. If (when) Hasan is found guilty, and if the death penalty is recommended, the President of the United States has to authorize it for Hasan actually to be put to death. Most of the death sentences coming out of military tribunals in the last several decades have been overturned. The last death sentence carried out by the military was in 1961. 

Regardless of anyone’s view of the death penalty, it is the law in the military. 

Thus, there is another hope about adherence to existing law: Hasan’s execution.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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