In a move that reeks of political motivations, Judge Col. Tara Osborn ruled against the admission of evidence that prosecutors say would show Major Nidal Hasan’s jihadist motivations for attacking the Fort Hood military base in 2009.
Osborn had been asked to approve several witnesses, along with other key evidence, that would have shown Hasan believed he had a “jihad duty” to perpetrate the atrocity that killed 13 and wounded 32 of his fellow soldiers. Lawyers representing family members killed and wounded by Hasan were rightfully outraged by her refusal to allow the evidence.
The barred evidence included references to Hasan Akbar, a Muslim soldier who was sentenced to death after killing two and wounding 14 of his fellow soldiers in a grenade and rifle attack at Camp Pennsylvania in Kuwait, two days after the beginning of the U.S. invasion of Iraq in 2003.
Prosecutors wanted to suggest that Hasan had carried out a “copycat attack.” Osborn disagreed. ”The court believes Sgt. Akbar is not on trial in this case,” Osborn contended, adding that the introduction of such evidence would ”only open the door to a mini-trial” of Akbar and result in a “confusion of issues, unfair prejudice, waste of time and undue delay.”
It’s an absurd ruling. Hasan gave one presentation to his supervisors and about 25 other mental health staff members during his senior year as a psych resident in June 2007.
If such a presentation, which took place only a year and a half before the Fort Hood killings, is too remote in time, maybe it’s because of the multiple delays in getting this trial underway, one of which included an argument over whether Hasan could keep his beard.
(That argument is why Osborn is presiding over the case. The original judge, Col. Gregory Gross, was removed after a military appeals court ruled that his “duel of wills” with Hasan over the beard made him appear biased).
As for the idea that Hasan’s presentation is open to multiple interpretations, so what? A trial itself is the essence of multiple interpretations that are eventually winnowed down by a jury in their effort to determine innocence or guilt. (The jury in this death penalty case consists of 12 officers, all of whom are required to be of Hasan’s rank or higher).
Furthermore, Hasan’s presentation, “The Koranic World View As It Relates to Muslims in the U.S. Military,” was a giant red flag. It consisted of 50 slides and information about Islam, suicide bombers, and the potential threats to which the military could be subjected by Muslims conflicted about fighting in Iraq and Afghanistan. Hasan contended that in order to avoid “adverse events,” the military should consider granting conscientious objector releases to Muslim soldiers rather then making them fight against their fellow Muslims.
"It’s getting harder and harder for Muslims in the service to morally justify being in a military that seems constantly engaged against fellow Muslims,” he said during the presentation.
There were other equally disturbing parts as well. Under one slide, titled "Comments,” Hasan wrote, “If Muslim groups can convince Muslims that they are fighting for God against injustices of the ‘infidels’; ie: enemies of Islam, then Muslims can become a potent adversary ie: suicide bombing, etc.” [sic] The last bullet point on another page stated, ”We love death more then [sic] you love life!”
The “Conclusions” page was equally revealing. Hasan stated that ”Fighting to establish an Islamic State to please God, even by force, is condoned by the Islam” and that “Muslim Soldiers should not serve in any capacity that renders them at risk to hurting/killing believers unjustly–will vary!” [sic]
What makes Osborn’s refusal to allow what would appear to be a substantial piece of evidence regarding Hasan’s motives even more bizarre is the reality that Hasan himself explained his motive and admitted his guilt in his opening statement.
"The evidence will clearly show that I am the shooter,” said Hasan. He also voiced his allegiance to America’s enemies. "Evidence will show I was on the wrong side of America’s war and I later switched sides. We in the mujahideen are imperfect beings trying to establish a perfect religion … I apologize for any mistakes I have made in this endeavor.”
That would be the same jihad in which another American-born Muslim named Anwar al-Awlaki was engaged before a U.S. predator drone strike took him out in Yemen in 2011. Al-Awlaki, who had lunch at the Pentagon shortly after 9/11 in an effort to engage in Muslim “outreach,” became a key member of Al Qaeda in the Arabian Peninsula.
Yet Osborn ruled that emails between Hasan and al-Awlaki were also inadmissible, because they would have to be “redacted to prevent undue prejudice by association” and the resultant redactions would make them irrelevant.
In other words, despite the reality that Hasan has declared himself an enemy of the United States, it would be prejudicial to associate him with another enemy of the United States with whom he regularly communicated.
Osborn also ruled that prosecutors could not use Hasan’s 2006 inquiry into the possibility of filing conscientious objector status. Considering that this would have tied directly into his lecture on the same topic during his presentation at Walter Reed a year later, Osborn demonstrates an equally foolish, but unsurprising consistency.
Osborn did allow the prosecutors to introduce evidence of Hasan’s internet searches on jihad and the Taliban, but according to CNN, it was limited to “days and hours before the attack.” FBI Special Agent Charles Cox III, a computer forensics examiner, testified that someone had used Hasan’s computer to pull up an article titled, ”Pakistan Taliban Chief Urges Taliban to Fight Army,” only two hours before the mass murder took place.
It is no secret why Judge Col. Tara Osborn was determined to severely limit the prosecution’s attempt to establish motive. Lead prosecutor Col. Steve Henricks’ opening statements made it clear where their side was going.
“He didn’t want to deploy and he came to believe he had a jihad duty to murder soldiers,” said Henricks, who further contended Hasan wanted to “kill as many soldiers as he could.”
Those ideas are completely antithetical to the Obama administration’s determination to remove all references to Islamist jihad from the Fort Hood slaughter. Nothing speaks to this effort more clearly than the reality that the mass murder of American soldiers by a Muslim several witnesses alleged was shouting ”Allahu Akbar!” as he gunned them down was officially labeled “workplace violence.”
Moreover that label, in conjunction with Osborn’s rulings, would sharply limit damages in the civil suit brought by the victims’ families, compared to what they might receive if the shootings were an act of terror, including Purple Hearts, combat medals and superior health benefits.
Neal Sher, a lawyer who represents many of the victims and their families, was offended by Osborn’s rulings. "This is first degree mass murder case and motive is absolutely relevant to prove premeditation,” he explained.
Sher further noted the bizarre nature of the proceedings, in that the government “is talking from both sides of its mouth,” with the military defense maintaining the administration’s see-no-jihadism position, while the military prosecution insists Islamic jihad explains everything Hasan has done.
Unfortunately for the administration, it would seem almost certain that Hasan, who will get the opportunity to present his case after the prosecution rested yesterday, isn’t about to corroborate their insufferably PC version of his rampage. In addition to his opening statement, two clues indicate precisely the opposite.
First, Hasan released three pages from his Sanity Board Report to the New York Times last week. In it he justified killing his fellow soldiers because they were “going against the Islamic Empire.” The report also noted that Hasan would have been honored to die because it meant “God had chosen him as a martyr.” And Hasan himself told the military board that ”I’m paraplegic and could be in jail for the rest of my life. However, if I died by lethal injection I would still be a martyr.”
Second, and perhaps most telling, Hasan and prosecutors have officially agreed on the definition of jihad:
Under Islam, the central doctrine that calls on believers to combat the enemies of their religion. According to the Qur’an and the Hadith, jihad is a duty that may be fulfilled in four ways: by the heart, the tongue, the hand, or the sword. The first way involves an inner hatred for those evils that cannot be overcome by the other 3 [sic] ways. The ways of the tongue and hand call for verbal defense and right actions. The jihad of the sword involves waging war against enemies of Islam. Believers contend that those who die fighting in All-Mighty Allah’s cause are guaranteed a place in paradise as well as a special status.
Osborn’s rulings may be have thwarted the prosecution, but it won’t make any difference. Hasan has his platform, and it seems almost certain that politically correct facade erected by the Obama administration will be completely shattered. Its destruction couldn’t be more well deserved.
Arnold Ahlert is a former NY Post op-ed columnist. He may be reached at firstname.lastname@example.org
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