The answer to this question depends on how authorities see the murder of 13 people and wounding of dozens more on the Fort Hood military base last week. If Nidal Hasan committed a mass murder, then the military would have jurisdiction. However, if the Obama administration calls it a terrorist attack, then Johanna Neuman of the Los Angeles Times says that the Department of Justice might have overriding jurisdiction:
The question now: Who will prosecute him?
Tom Kenniff, a former Army JAG officer and Iraq war veteran who served in Tikrit, said Friday he thought the judge advocate general’s office on Ft. Hood will have exclusive jurisdiction over this case. “It’s possible he could also be charged by the Feds with committing an act of terrorism, but my guess is the Army will get first crack at him,” he said in an online chat for the Washington Post.
But Sunday, Connecticut Independent Joe Lieberman said the Homeland Security Committee he chairs will investigate whether federal officials missed any red flags that Hasan had become a terrorist threat. …
A finding of terrorism could trigger a decision by the Obama administration to take the case to federal court, and an admission that Hasan’s alleged action was the first act of terrorism on American soil since Sept. 11.
For those who see this as a terrorist act and want an execution, a military prosecution would probably prove less than satisfactory. The military is usually reluctant to impose the death penalty, although that option is open to prosecutors. They have not actually executed anyone for murder since 1961, although to be fair, they have not had this set of circumstances occur in that period, either.
However, the Obama administration may not be terribly anxious to declare this a terrorist attack, either. With information leaking all over the place about red flags popping up and a lack of any action on them, declaring this a terrorist attack would focus a lot more attention on why the Obama administration failed to stop it. Lieberman may demand a Congressional investigation, but a probe by this Congress would be unlikely to attack Barack Obama or his DoJ. Besides, with the revelation about the FBI’s knowledge of Hasan’s attempts to contact al-Qaeda over the last few months, a Justice prosecution could become suspect.
For that matter, this also demonstrates the problem with terms like “terrorism” — and “hate crimes”. The murder of 13 people and the wounding of dozens of others should be serious enough to carry with it the most severe penalties. What would be gained by adding terrorism charges that don’t already exist with mass murder? The motivation of Hasan may have some import for policy and security issues, but for a trial, it just muddies what are now crystal-clear waters.
In the end, I’d expect this to remain in the jurisdiction of the military. It would cause less disruption, create fewer questions, and would almost certainly get expedited over a DoJ process.