As Maj. Nidal Malik Hasan lay under heavy guard at Fort Sam Houston on Sunday, military prosecutors and the accused Fort Hood gunman’s family were preparing for what could be a long and complicated legal proceeding.
Military justice experts told the Houston Chronicle that Hasan, if he recovers, could face the death penalty in a military court-martial — unless civilian prosecutors conclude that he was part of a terrorist plot that would justify moving his case into federal criminal courts under U.S. anti-terrorism laws.
But veterans of the military justice system say that any case against Hasan could take many months and could be delayed by medical assessments of the Army officer’s physical and mental health. And even if a death sentence is handed down, the military justice system’s lengthy appeals process has effectively thwarted all executions since 1961.
“We’re in for a long haul,” said Scott L. Silliman, a retired career JAG officer in the Air Force who now directs Duke University Law School’s Center on Ethics and National Security.
The Army “will not try to move the case too quickly because that might build in a problem down the road,” he added. “They’re doing all their spade work. There’s not a rush.”
As the probe proceeds, the case against Hasan will be complicated by questions of whether he was sane at the time of the shootings or if he can get a fair trial at Fort Hood.
Indeed, prominent figures – from his base commander, Lt. Gen. Robert Cone, to his commander-in-chief, President Barack Obama – have publicly identified him as the alleged assailant. On Sunday, Army Chief of Staff George Casey said on ABC’s This Week program that Army investigators currently believe that Maj. Hasan was the lone gunman.
“That is where they are now,” Casey said, before adding, “We need to let the investigation take its course.”
Hasan has not yet been charged with any crime in either the civilian or military justice systems. Richard Durbin, chief of the criminal section for the U.S. Attorney’s Office in San Antonio, declined comment on any potential charges Sunday, declaring, “I’m not going to go there.”