Legalities of the Fort Hood Shooting

In continuation of my attempt to resume using this blog, I thought that I'd share a bit of legal theory-crafting that I was doing earlier. In the light of the Fort Hood shooting, I began examining the legalities of the situation, particularly if the attacker, MAJ Nidal Malik Hasan, had hypothetically been a member of a foreign militant organization. I think that this is a very interesting legal question because it is a good example of where the lines are drawn insofar as international wartime law is concerned.

Here are the following questions that would have to be looked at under the Hague conventions and by extension the other international war conduct treaties. If you are unfamiliar with the event, then crawl out from under your rock and check out the fantastic New York Times article by spot news Pulitzer veteran Robert McFadden about the incident (especially its fantastically written ending):

1) Is the man (hereafter called the Agent) a soldier of an enemy army or militia? Or alternatively, does the Taliban / Al Qaeda / Sadr Militia count as an army or militia, seeing as it is a political organization that doesn't really control a country? On this note, I think the answer is probably yes, but there is some room for debate.

2) Assuming the above is true, do the laws of war apply to the Agent? This seems unlikely due to the actions of the organizations in question. Article 1 of the Hague code would indicate that they have not fulfilled the requisite conditions:

Article 1, Chapter I, Section I of the Regulations Respecting the Laws and Customs of War on Land, of the Hague Convention

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;
To have a fixed distinctive emblem recognizable at a distance;
To carry arms openly; and
To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

3) Assuming that the laws of war did apply to the Agent, would his actions be a war crime? In this case, I would say yes. He violated two clauses of Article 23 of the Hague convention, killing and wounding treacherously as well as making improper use of an enemy uniform and insignia (meaning wearing it while attacking, as opposed to using it for reconnaissance or a so-called ruse of war).

4) Separately, are the soldiers at Fort Hood legal war targets? All indications point to yes. The base is guarded, and the soldiers are not convalescing or otherwise to be considered noncombatants. The civilians in the area would be considered collateral damage so long as they were not targeted specifically. Of course, for such an attack to be considered legal under international law, it would have to be conducted legally and by a legitimate army.

5) As such, the Agent would not be protected under international wartime law, as he did not abide by that law (indeed he violated it flagrantly). He would then be tried as an unlawful combatant, and thus would be judged under the domestic laws of the United States.

So enough of the hypothetical theory-crafting, what's really going to happen to the guy? Is he going to hang or are his lawyers going to say he's crazy? Probably both. His lawyers are going to plead not guilty by reason of incompetence (PTSD most likely), and the government is going to quash that like a ripe fruit. As far as I know the guy hasn't even been overseas. They'll ask for the death penalty and they'll probably get it too (this is Texas after all). Even if they didn't need to send a message to other would-be war objectors that this sort of thing gets put down with prejudice, this many murders would land a man in the hot seat regardless of the circumstance.

I once covered a similar case with a former military man who kidnapped and later killed his wife here in Oregon. His lawyers claimed he had PTSD, but the jury sentenced him to death anyways. The defense just isn't that strong, especially because the jury sees only a sane man and not a lunatic.

My only real question is whether they are going to try him under the UCMJ in a General Court-Martial with a JAG lawyer, a military judge and a five serviceman panel, or if they are going to turn him over to the civilian authorities to be tried in a Texan district court. Personally I'd prefer the former in this case, but I'm sure the Pentagon will get a lot of pressure to put him into state hands; whomever represents the guy will have a heck of a time deciding which one would be better for his client.