Hasan trial judge: Prosecutors barred from mentioning “jihad” motive

posted at 12:01 pm on August 20, 2013 by Ed Morrissey

Prosecutors will not be allowed to enter evidence that Nidal Hasan intended to commit jihad in his mass murder spree at Fort Hood nearly four years ago, the judge in the court-martial ruled yesterday.  Col. Tara Osborn also struck from evidence the correspondence between Hasan and al-Qaeda leader Anwar al-Awlaki, although she did allow prosecutors to use records of Hasan’s Internet usage and search histories at the time of the shooting:

Lawyers representing the family members of those killed and injured in the Ft. Hood shooting rampage were outraged today when an Army judge limited prosecutors from introducing evidence, including emails to a known Al Qaeda operative, that would establish accused shooter Maj. Nidal Hasan’s “jihadi” motives. …

Prosecutors have sought to portray Hasan as a Muslim extremist, motivated by Islamist ideology and in touch with known al Qaeda member Anwar Alwaki.

“He didn’t want to deploy and he came to believe he had a jihad duty to murder soldiers,” lead prosecutor Col. Steve Henricks said in his opening statements. He wanted to “kill as many soldiers as he could.”

The judge, Col. Tara Osborn, ruled today that prosecutors could not mention Hasan’s correspondence with Alwaki, an American born al Qaeda recruiter and organizer. Osborn also barred prosecutors from mentioning Hassan’s interest in seeking conscientious objector status and drawing parallels to a 2003 incident in which another Muslim American soldier attacked U.S. troops in Kuwait, according to the Associated Press.

The judge found much of that evidence was too old, but permitted prosecutors to introduce evidence about Hasan’s internet usage and search history from the time of the attack.

This won’t hamper prosecutors at all, since Hasan admitted to the murders in his opening statement.  The charges do not include terrorism, thanks to its lack of inclusion in the UCMJ, but the murder charges carry the death penalty anyway.

The real damage in this ruling is to the survivors and the families of the deceased.  They want to pursue civil litigation against Hasan, and against the Obama administration’s designation of the attack as “workplace violence.” Lawsuits will force the Department of Defense to answer for that decision, which keeps the dead and wounded from being recognized as victims of a terrorist attack.  An attorney representing the families expressed his outrage yesterday, saying that the evidence of Hasan’s motives should have been allowed as they would in any first-degree murder trial.

Perhaps they may get their wish anyway.  Hasan will shortly open his defense, and while most predict he won’t do much during the trial phase, he may be saving it for the sentencing hearing:

In a rare move, Hasan began this week by challenging the government’s definition of “jihad” and — for the first time since the day that testimony began — questioned a witness. …

Hasan briefly cross-examined Staff Sgt. Juan Alvarado, who saw a gunfight between Hasan and Kimberly Munley, one of the Fort Hood police officers who responded to the shootings. Alvarado said Hasan tried to shoot Munley after she had been shot and disarmed.

“Are you saying — and I don’t want to put words in your mouth — are you saying that after it was clear that she was disarmed, I continued to fire at her?” Hasan asked.

Alvarado said that was correct.

If the impression one gets is that this wasn’t a particularly helpful cross-examination for the defense, one would be correct — but only if one assumes that the defense wants to beat the rap.  Hasan wants to turn the court-martial into a platform for his jihad, and the most likely place for that to occur will be after the formal end of the defense at the closing, when Hasan can offer lengthy argument, or during sentencing. The survivors and families of the deceased will likely get a trove of on-the-record statements from Hasan that will more than suffice for their lawsuits.

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Obama certainly mishandled this from the start, but the problem with calling it “terrorism” is one of definition.

From U.S. Code Title 22, Ch.38, Para. 2656f(d):

d) Definitions
As used in this section—
(1) the term “international terrorism” means terrorism involving citizens or the territory of more than 1 country;
(2) the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents;

[emphasis added]

By Geneva Convention, active duty military cannot be considered “noncombatant,” and the civilian medical personnel and police serving on an Army base is a gray area if uniformed personnel are targeted.

So attempting to try Hassan on terrorism charges would not work for most of the victims, and might allow the defense room to make things murky if they tried to charge him with terrorism for just the civilians. Of course at the time charges were brought, it wasn’t clear Hassan would dismiss his legal team and play the jihadi card.

Smart prosecutors don’t charge in a way that offers the defense almost certain avenues of argument on appeal.

Naturally, the Obama Administration is too stupid and incompetent to have clearly explained all this from the start. But I hear they throw some great parties.

Adjoran on August 20, 2013 at 7:49 PM

This just became a joke trial.

Othniel on August 20, 2013 at 7:53 PM

Just another attempt by this administration remove the real motivation behind this attack. This dhimmi judge already allows Hasan to have a beard. Wearing it like a good solider of Allah.

sadsushi on August 20, 2013 at 8:11 PM

…what a bunch of shit!

KOOLAID2 on August 20, 2013 at 8:18 PM

BTW, the U.S. Army, it’s generals, are as responsible for those dozen murders just as much as is Hasan.

VorDaj on August 20, 2013 at 8:21 PM

Is the shill “judge” from Chicago?

She sounds like a holdover from Chi-town’s Al Capone days or dirtbag Holder since he was born.

viking01 on August 20, 2013 at 10:29 PM

So we are having a trial conducted under the tenets of sharia law?

onlineanalyst on August 20, 2013 at 10:48 PM

Isn’t apparent that he wants to be found guilty so that they will put him to death. Death is what he wants. They just should give him life without any chance of parole.

Pomai on August 21, 2013 at 12:01 AM

though she did allow prosecutors to use records of Hasan’s Internet usage and search histories at the time of the shooting:

There in lies the problem folks. There’s not and will never be… a woman in uniform..and I don’t care what rank (PC) she was “awarded”..that has the nuts or the DNA to sit in judgement of any combat soldier…period. This is a huge mistake to allow this to happen, let alone sit on a bench.

They just don’t get it…none of them have the stomach for real justice and to do what’s right in this case.

Even the woman “judge” in NY that’s declared “stop & frisk” unconstitutional. It’s disgusting and just show’s how damn weak and silly we are.

Twana on August 21, 2013 at 12:16 AM

This is pretty simple: the prosecution should just use innoccuous code words that everyone can easily follow, such as “crusade”, “campaign” or “mission”. They don’t have to use specific terminology to make their point.

So if the judge says “no Jihad” then that’s OK. They should be able to point out that Hasan is “enthusiastic” about his religion (which was I believe, your honor, Islam) which resulted in his homicidal campaign.

virgo on August 21, 2013 at 12:28 AM

Philistines upon you, America.

Shy Guy on August 21, 2013 at 12:30 AM

The way notorious former governor Fast Eddie Edwards stayed out of jail for so long is by finding judges of easy virtue to exclude any incriminating evidence. Usually someone he had appointed or had equal dirt on them.

viking01 on August 21, 2013 at 12:40 AM

In a sane world, the prosecution would file for a mistrial and the judge disbarred….but this is 21 century America; the very epitome of insanity.

Don L on August 21, 2013 at 2:11 AM

Well the prosecution can attack the Obama-mentality by spending the entire trial destroying the very insulting political (not truth, not justice) deceit that this was mere workplace violence–thus bringing out the only alternative motive–which the entire world, including the judge, knows is true.

Don L on August 21, 2013 at 2:16 AM

America hangs itself… instead of the jihadist scum terrorist killer.

profitsbeard on August 21, 2013 at 3:28 AM

Hasan?…….wrap him in bacon and make him listen to Katy Perry and Lady Gaga’s songs that were deemed NOT good enough to make onto their latest CD’s!

……and even that is probably to good of a way to render punishment.

PappyD61 on August 21, 2013 at 7:35 AM

Interesting that while they have barely said two words about this trial, National Progressive Radio is giving daily updates on the trial of the soldier charged with murdering all those Afghan civilians. NPR is also devoting a lot of air time on various shows to promote Al Jazeera America.

NPR is in league with the enemy. Treat them as such.

RobertE on August 21, 2013 at 9:37 AM

So now that Bradley Manning got 35 years, this may raise the bar for this judge, right? Manning wasn’t even a foaming-at-the-mouth islamist. Is she going to give Hasan probation, we wonder?

The pols may well be hoping to give whitey payback for the Trayvon trial since that did not go their way. Given their pattern of judicial interference, this is not a stretch, unfortunately.

virgo on August 21, 2013 at 11:26 AM

So the military personnel targeted by this coward are considered
“combatants” even though they were all stateside, on a friendly base and totally unarmed when attacked by this traitor. rmed. Somehow I doubt the Geneva Convention was intended to refer to this.

rwenger43 on August 21, 2013 at 3:57 PM

If you wanted abject boot and ball licking of Islam, America can’t be beat.

Hope this doesn’t color any of Bloombergs Muslim monetary deals. Or the Bushes and Clintons for that matter. Or cut funding for Israeli apartheid week on any of the Ivy leagues turf.

[email protected] on August 21, 2013 at 4:58 PM

Are lobotomies are pre-requisite for a judgeship in America?

Another Drew on August 21, 2013 at 6:44 PM