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.

Flesh and Blood Defense

Washington Monthly recently published a fascinating article written by Kevin Carey, the research and policy manager of Education Sector, an independent think tank in Washington, DC.

"Too Weird for The Wire," the article is titled, "How black Baltimore drug dealers are using white supremacist legal theories to confound the Feds."

Upon finding it I quickly found myself engrossed in the extensive article, but when I tried to tell people about the article, it was difficult to relay my fascination. Detailing the history of a legal defense, it reads less like a documentary and more like a mystery novel.

"I am not a defendant,” Mitchell declared. “I do not have attorneys.” The court “lacks territorial jurisdiction over me,” he argued, to the amazement of his lawyers. To support these contentions, he cited decades-old acts of Congress involving the abandonment of the gold standard and the creation of the Federal Reserve. Judge Davis, a Baltimore-born African American in his late fifties, tried to interrupt. “I object,” Mitchell repeated robotically. Shelly Martin and Shelton Harris followed Mitchell to the microphone, giving the same speech verbatim. Their attorneys tried to intervene, but when Harris’s lawyer leaned over to speak to him, Harris shoved him away.

Judge Davis ordered the three defendants to be removed from the court, and turned to Gardner, who had, until then, remained quiet. But Gardner, too, intoned the same strange speech. “I am Shawn Earl Gardner, live man, flesh and blood,” he proclaimed. Every time the judge referred to him as “the defendant” or “Mr. Gardner,” Gardner automatically interrupted: “My name is Shawn Earl Gardner, sir.” Davis tried to explain to Gardner that his behavior was putting his chances of acquittal or leniency at risk. “Don’t throw your life away,” Davis pleaded. But Gardner wouldn’t stop. Judge Davis concluded the hearing, determined to find out what was going on.

Link via The Washington Monthly

Supanchick Trial Coverage

Today I went to the Lane County Circuit Court to cover a judicial case for my reporting class. I stayed about two hours, then raced back to the computer lab to put together 800 words for the article. I wanted to get the thing done by 1700, a common deadline in newspapers, and I managed to do so with about 30 minutes to spare.

I sent the article to my professor and a couple newspapers, but I haven't heard back from anyone.


Jury Considers Capital Punishment for Supanchick

Eugene, Ore. - The Supanchick murder trial entered the sentencing phase Tuesday, after ex-Navy corpsman Tyke Thomas Supanchick, 30, was found guilty on April 18 of killing his estranged wife Kelly Supanchick, 25. Prosecutors are seeking the death penalty in this case.

The sentencing began with an extended opening statement by the defense, which laid out their case against execution, and repeated their requests for the 12-person jury to be “rational.”

“The first part of the case was driven by emotion,” the defense attorneys said, “but this part is about judgment. His life is in your hands.”

Their opening statement continued by talking about Supanchick’s service in the military and his work in the community, which has continued during his time in prison. The defendant has mentored and tutored other inmates throughout his incarceration, according to the defense attorneys.

“This young man has spent all of his life in service,” the attorneys said. “Nothing can punish him any more than he is being punished. And he welcomes it.”

The defense argues that the murder was entirely out of character for Supanchick, and should not be viewed as evidence of future dangerousness. They said that the trial up to that point had been about trying to explain how something can happen so quickly when he had “led an exemplary life.”

According to the defense lawyers, the defendant accepts that he is “absolutely responsible” for the death. However they cautioned the jury about the impact of an execution upon Supanchick’s five brothers, mother and father.

“This has destroyed them. Truly, truly destroyed.”

The prosecution responded with impassioned testimony by the victim’s parents, Howard Jackson and Beatrice Schwartzman.

“Having your kid murdered makes you question whatever belief system you might have,” Schwartzman said. “Because that is not how it is supposed to work.”

When she heard about her daughter’s death, Schwartzman thought there must have been a misunderstanding.

“It didn’t go in, it’s like it bounced off my head.”

Both parents describe her as a happy, competitive “tomboy,” who was a good mother. She joined the Navy in 2001, and was part of the ceremonial guard in Washington, DC, before receiving a medical discharge for a “circulation problem,” according to Jackson.

Howard Jackson and his wife Sue have legally adopted their granddaughter, Guinevere, 4, and live with her in Topeka, Kan. Schwartzman, who lives in St. Louis, Mo., said that the girl “seems to be in pretty good shape – in spite of it all.”

“She has her ‘mom that died,’ and her ‘mom that she lives with,’” Schwartzman said.

Jackson stated that he has no intent to foster a relationship between her and the defendant. However, he said that they did have a picture of Tyke Supanchick in a personal history photo album, which Guinevere was free to look at whenever she wanted.

“I am not going to lie about [her mother’s death],” Jackson said. “I am going to sugarcoat it.”

After the parent’s testimony, defense lawyers motioned for summary judgment by the judge, citing insufficient evidence of future dangerousness of the defendant. The court adjourned while the defense readied their video testimony in support of the motion.

Kelly Supanchick filed a restraining order against Tyke Supanchick a month prior to the shooting, citing personal threats and worries about two loaded guns in their house. The two were involved in a custody battle over their 18-month-old daughter. Supanchick entered his wife’s home on Dec. 23, 2005, armed with a shotgun, a large knife, duct tape and rubber gloves. Hours later, police arrived at the duplex after being alerted by his father.

Officer Richard Bremer testified that he peered through a window and saw that Kelly Supanchick was bound and in need of help, so police attempted to kick down the door. Tyke Supanchick shot the victim several times in the head and body, killing her, then surrendered to police.

The Supanchick trial is the first Oregon death penalty case held since the US Supreme Court ended its seven months long de facto moratorium on the death penalty on April 16. In a 7 – 2 opinion, the court ruled that correctly administered lethal injection did not constitute “cruel and unusual punishment.”

If sentenced to be executed, Supanchick would join 35 men sitting on death row. However, Oregon has only exercised capital punishment twice in the last 32 years, and there are no scheduled executions.

The trial, before Lane County Circuit Judge Gregory Foote, is expected to conclude within a week.