Fort Hood: If Nidal Malik Hasan talks, will he live?Professor Annemarie McAvoy in The Christian Science Monitor, November 14, 2009
Military prosecutors appear likely to ask for the death penalty for Army Maj. Nidal Malik Hasan, who was charged Thursday with 13 counts of premeditated murder.
That prosecutorial tack is indicated by military investigators' position thus far that Hasan acted alone and without instruction when he attacked Fort Hood's Soldier Readiness Processing Center Nov. 5, killing 13 and wounding 29. The military is also considering charging Hasan with a 14th murder because one victim was pregnant. The death of an unborn child can qualify as murder under military law.
If Hasan is convicted, any death sentence would ultimately have to be approved by Lt. Gen. Robert Cone, Fort Hood commander, and President Obama.
But emerging evidence that Hasan may have terrorist connections could alter the prosecutorial strategy, as his story would hold invaluable information for investigators. One way to get that information would be to offer Hasan a deal – such as revoking the death penalty if he'll fill in the gaps in the investigation.
Getting Hasan to talk could be crucial if evidence points to a broader conspiracy that could include more attacks, says Annemarie McAvoy, a former federal prosecutor.
"A guy like this may well not be interested in talking, because it's an ideological issue with a reward in the afterlife – in fact, a lot of these folks tell [investigators] to pound dirt," says Ms. McAvoy, now an expert on terrorism financing at Fordham Law School in New York. "On the other hand, he's an American and so hopefully if he's pulled away for a while he could become more reasonable and more cooperative.
"The big question that investigators have to answer and answer quickly is whether this was a plot or was it really an isolated act," she adds.
Sen. Joseph Lieberman (I) of Connecticut has called the Fort Hood shootings a possible terrorist attack, citing statements Hasan had made to colleagues denouncing the US war in the Middle East and indications that he had turned to Islamic extremism.
Other reports of terrorist ties have surfaced in recent days. Intelligence officials have confirmed that Hasan had reached out to Anwar al-Awlaki, a radical cleric who lives in Yemen.
Investigators are also reportedly looking into whether Hasan wired money to Pakistan in the days before the attack.
The wire transfer issue is potentially explosive, says McAvoy, because a common practice of the 9/11 terrorists was to live cheaply and wire all extra income back to their Al Qaeda handlers. The notion of an Army doctor getting paid nearly $100,000 a year while living in a squalid $350 apartment fits that profile, says McAvoy.
Reports about the money transfer come from Rep. Peter Hoestra (R) of Michigan, a member of the House Intelligence Committee, who told Fox News that some intelligence analysts are increasingly concerned about a terrorism connection. "They think it's a real lead," he said.
The fact that the case has moved so quickly to a federal military court – which would preclude a civilian prosecution in another federal court at a later date – is disturbing to some analysts, including McAvoy.
A military court martial may leave unanswered many questions about terrorist ties since court martials tend to focus on details of the crime and not motive, says Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke University in Durham, N.C.
Still, a death penalty immunity deal in exchange for information is possible, he adds.
"The way it would possibly work out is [Hasan's] lawyers would approach the government attorney who represents the commander, and say, 'We are prepared to cooperate in the investigation if you agree that even if the jury awards the death sentence, the commander will not approve it,' " says Mr. Silliman.
How any evidence of terrorism would play into the quickly moving court martial of Hasan is unclear. The Army psychiatrist cannot be questioned by the Army Criminal Investigation Division until he's declared mentally able to stand trial. At that point, Hasan could waive his right to remain silent to talk directly to investigators.
The Senate's Homeland Security Committee is planning hearings on the investigation next week.