Fox News is reporting that defense lawyers for Nidal Hasan, the Army major who killed a dozen people in a murderous terrorist attack at Fort Hood last November, have been told by the Obama Administration that they will not be allowed to see an intelligence review prepared for the White House immediately after the shooting.
The report is said to contain “highly classified, compartmented, and sensitive information originating with a number of different executive branch agencies.” Hasan’s lawyers say it’s only one of many documents being blocked, including the full accountability review of Hasan’s supervisors at Walter Reed, and emails between Hasan and terrorist mastermind Anwar al-Awlaki, who the CIA wants dead or… well, no, just dead would be fine.
In case you had forgotten, Nidal Hasan is still alive, paralyzed from the waist down after being shot by heroic police officers. He’s on trial in a military court for 13 counts of murder, and 32 counts of attempted murder. Defense Attorney John Galligan asked Fox News, “How do you put a guy on trial for his life, without giving his defense full discovery? No one in their right mind would dispute that [the White House report] is relevant.”
He’s right about that, and he illustrates one of the problems with treating unlawful enemy combatants as criminals in both civilian and military courts. Which is Nidal Hasan: an American criminal in uniform, or the disguised soldier of an unlawful enemy? He’s not formally a member of al-Qaeda, but they love his work. Al-Awlaki called him a “hero” who demonstrated that “fighting against the U.S. army is an Islamic duty.” Corpulent al-Qaeda spokesman Adam “The American” Gadahn called him a “pioneer, trailblazer, and role model.” Did Hasan’s extensive contacts with characters like al-Awlaki constitute “recruitment,” and do you have to be recruited in order to join al-Qaeda? Does membership in this diffuse organization of international terror depend entirely on completion of the appropriate paperwork?
Hasan is American-born, but his inclinations toward radical Islamic fascism stretch back for years. He had some very alarming things to say about a Muslim soldier’s duty to Islam during his residency at Walter Reed, which his superiors studiously ignored. He served in the Army as a psychiatrist, and wanted to hand over confidential information on some of his patients, to accuse them of war crimes. Is he a criminally-insane American, or a traitor whose bloody work on behalf of a foreign enemy places him outside both domestic law and the Geneva Conventions?
While we’re pondering the answer to this question, we should keep in mind that an American tried in civil or military court is entitled to a robust defense, which will frequently involve access to national intelligence information. On a much larger scale, this is one of the fears about dragging someone like Khalid Sheikh Mohammed into a civilian courtroom. Special military tribunals would considerably reduce this risk.
What’s the big deal about the intelligence report the Obama Administration wants to suppress? The obvious answer is that it contains information the government finds embarrassing, since the broad outlines of Hasan’s radicalization are well known, and there’s no doubt he perpetrated the actions he’s on trial for. His legal team is probably trying to avoid the death sentence by transferring some degree of culpability to his superiors, who should have noticed he was going nuts.
Like the lawyers for Ahmed Ghailani, the terrorist who beat the rap for two hundred murders in a New York courtroom this week, Hasan’s attorneys are just doing their jobs… as elements of a system that has not yet figured out how to deal with existential threats that turn it against itself. The mission of a legal defense team for terrorists will inevitably bring them into conflict with the needs of national intelligence, which is the most vital resource in the long struggle against an enemy that follows no rules, and forms no battle lines. It will also bring them up against politicians and bureaucrats, who are not anxious to discuss their role in creating the weaknesses that terrorist murderers exploit.