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Who should try Nidal Malik Hasan -- military or federal courts?

November 9, 2009 | 10:06 am

Specialist Braden Purrentine of the first Cavalry trains a horse in front of flags flying at half mast at the Fort Hood Army Post in Fort Hood, Texas November 7, 2009. Investigators searched on Friday for the motive behind a mass shooting at a sprawling U.S. Army base in Texas, in which an Army psychiatrist trained to treat war wounded is suspected of killing 13 people. The suspected gunman, Major Nidal Malik Hasan, a Muslim born in the United States of immigrant parents, was shot four times by police, a base spokesman said.
An Army hospital spokesman said today that Nidal Malik Hasan is now conscious and able to talk.

The 39-year-old Army major and combat psychiatrist is accused of unleashing a bloody massacre Thursday when he opened fire at a processing center at Ft. Hood Army military base, killing 13 and wounding 29.

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.

“We don’t know enough to say now, but there are very, very strong warning signs (Hasan) had become an Islamist extremist and, therefore, that this was a terrorist act,” Lieberman said on Fox News Sunday.

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. President Obama flies to Texas on Tuesday to participate in a memorial for the 13 victims.

Murder in either case is punishable by the death penalty, but the appeals process in the military justice system apparently tends to discourage executions. According to  the Houston Chronicle, of the  47 service members charged with murder in recent decades, 15 have received a death sentence, and none has been executed since 1961.

"We're in for a long haul," Scott Silliman, retired career JAG Air Force officer who now directs the Center on Ethics and National Security at Duke University Law School, told the paper. The Army "will not try to move the case too quickly because that might build in a problem down the road."

Meanwhile Hasan's family is asking that he be allowed to consult with a lawyer before speaking to investigators. In a statement Saturday, Eyad Hasan, the suspect's brother, said his family has “faith in our legal system and that my brother will be treated fairly.”

-- Johanna Neuman

Photo: Specialist Braden Purrentine trains a horse in front of flags flying at half-mast for the victims of Thursday's massacre at Ft. Hood. Credit: Reuters

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