A military judge had no choice but to allow Ft. Hood shooter Nidal Hasan to represent himself at trial and probably couldn’t stop Hasan from turning the courtroom into a platform for his radical Islamic views, according to former U.S. Attorney Andrew C. McCarthy.
McCarthy, who led the successful prosecution against the 1993 World Trade Center bombers, also says the Obama administration looks increasingly bad for refusing to call the Ft. Hood attack an act of terrorism now that Hasan is admitting why he carried out the massacre. The attack in November 2009 killed 13 people and injured 32 others.
Earlier this week, Hasan was granted permission by Judge Col. Tara Osborn to act as his own counsel in the upcoming trial. McCarthy says Osborn really had no choice.
“I don’t see how the judge could avoid it. As the Supreme Court has held, if you make a knowing and intelligent decision before the trial starts that you want to represent yourself, you have an absolute constitutional right to do that,” said McCarthy. “I think that the objections that people have or the fears they have that by representing himself he’s going to turn the proceedings into a circus are a little bit overblown. Let’s face it, even if he weren’t representing himself he could try to turn the case into a circus if that’s what he was determined to do.
“Whether he’ll be able to do that or not is really going to be a function of how strong the judge presiding over the trial is, not whether (Hasan’s) just a defendant at the table or the defendant who represents himself,” said McCarthy.
McCarthy says Hasan’s strategy is most likely to lay the grounds for an appeal of a likely death sentence.
“What a defendant is always trying to do is sow error into the record because that’s the best chance you have of getting the outcome reversed on appeal. I think what he’s really trying to accomplish here is get the death penalty off the table one way or the other. This is a way that makes the trial a little bit more chaotic,” said McCarthy, who says if Hasan is convicted and sentenced to death he has a good chance of finding a sympathetic appellate court that could save his life.
Another issue in the case is what discovery evidence Hasan will have access to as he prepares his defense. McCarthy says the government’s cautious charges in this case should limit the amount of sensitive information provided to Hasan.
“It would concern me more if he were being accused as an Al Qaeda operative because then there would be an argument that he should be given the discovery about the overall Al Qaeda conspiracy,” said McCarthy. “The way the prosecution has a way of regulating how much or how little a defendant is entitled to in terms of discovery is how you plead the case.
“In this case, the prosecution has plead the case narrowly. They’ve gone out of their way not to accuse him of terrorism, which I think is a mistake but I think they have made it a simple, straightforward homicide case. Therefore, I would say that he should not be entitled to any discovery about our enemies,” said McCarthy, who says the only Al Qaeda-related content the prosecution will likely mention is Hasan’s relationship with radical cleric Anwar Al-Awlaki.
Hasan is also asking for a delay in the start of the trial because of his intent to pursue a new, “defense of others” strategy. When asked by Judge Osborn who he was defending, Hasan mentioned the leadership of the Islamic emirate of Afghanistan, the Taliban and Taliban leader Mullah Omar. McCarthy says he would not delay the trial any further and hopes the judge will rule that way. He also says Hasan’s admission of carrying out the killings and why he did it put the Obama administration in a bad light for refusing to call the Ft. Hood attack an act of terrorism and referring to it instead as “workplace violence”.
“It was always preposterous for the U.S. government to claim that they couldn’t acknowledge that this was terrorism because to do so would prejudice his trial. It wouldn’t have had any bearing on his trial whatsoever. To make an accusation that’s simply accurate is never something that is prejudicial to a trial,” said McCarthy, who believes Hasan is trying to make the government squirm as a result of its reticence to accurately describe his actions.
“This simply underscores that this was a a jihadist terror attack. It should never have been looked at in any other way. And it’s kind of embarrassing for the Obama administration to be insistent that this is workplace violence or to bend over not only backwards but to contort themselves unrecognizably in order to avoid acknowledging what’s perfectly obvious, which is that this is Islamic supremacist-driven terrorism,” said McCarthy.