WASHINGTON – A leading, impartial expert on military justice has told Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., and Ranking Member Susan Collins, R-Me., that the Committee’s efforts to obtain documents and witnesses on the Fort Hood massacre will pose no problems for the prosecution of alleged killer Major Nidal Hasan.
This conclusion is at odds with claims by the Department of Defense (DOD) and the Department of Justice (DOJ), which are defying subpoenas from the Committee, based on their fears that turning over documents and witnesses will compromise the prosecution’s case.
In a letter addressed to the Senators, Eugene R. Fidell, President of the National Institute of Military Justice and a senior research scholar at Yale Law School, wrote, “Nothing unique to the military justice system precludes access to the kinds of information the Committee has sought…
“So long as the [Congressional] inquiry does not address [Hasan’s] potential guilt or innocence or seek to probe military decision making with respect to whether he should be charged or tried, I do not see why the Committee should be denied the information it seeks… “Making Department of Defense and Federal Bureau of Investigation agents available to the Committee should have no impact on a trial.”
The Committee launched an investigation immediately after the November 5, 2009, attack at Fort Hood that killed 13 people. After five months of Administration intransigence, the Senators issued subpoenas to DOD and DOJ on April 19, 2010, for key witnesses and documents.
The Senators have stated their investigation focuses on what information the government had about Major Hasan before his attack and steps that might have been taken to avert it. They have also stated their investigation does not focus on the events of November 5, 2009, Major Hasan’s guilt or innocence, or the military’s decision to try him.
The Departments continue to defy the subpoenas and are refusing to produce (1) DOD and Federal Bureau of Investigation agents who reviewed communications by Major Hasan before the attack, and (2) transcripts and summaries of transcripts of prosecutorial interviews of Major Hasan’s superiors and associates that the DOD already provided to its internal review led by former Secretary of the Army Togo West and retired Admiral Vern Clark.
Following is full text of the letter:
April 28, 2010
Hon. Joseph I. Lieberman
Chairman Committee on Homeland Security and Governmental Affairs
340 Dirksen Senate Office Building Washington, D.C. 20510-6250
Re: Ft. Hood Investigation
Dear Mr. Chairman:
Your staff has asked whether, in my opinion, the Committee’s effort to determine what the government knew about Dr. Hasan before the shooting at Ft. Hood, as opposed to whether he is guilty or innocent, is likely to put at risk the fair administration of justice. Speaking only for myself and expressing no position on his guilt or innocence, I am satisfied that the Committee’s investigation can proceed and would not interfere with the prosecution.
I have been involved with military justice in one capacity or another for 40 years. I was a trial counsel (prosecutor) and defense counsel in the U.S. Coast Guard. I teach military justice and have written extensively on the subject. I have served as a public member of the statutory Code Committee on Military Justice and have represented members of every branch of the service.
Congress should never interfere with pending courts-martial and related military justice investigations. Attempts by legislators to exert influence over the disposition of individual cases, such as occurred in the recent Navy SEALs cases, cast a shadow over the military justice system. They detract from public confidence in the administration of justice just as unlawful command influence exerted from within the military can do.
However, the Committee’s efforts do not raise any such concern because they focus on the government’s activities prior to the shooting.
Nothing unique to the military justice system precludes access to the kinds of information the Committee has sought. The Committee’s limited goal, as I understand it, is to examine how Executive Branch systems functioned in the face of information suggesting that Dr. Hasan may have presented a risk. So long as the inquiry does not address his potential guilt or innocence or seek to probe military decision making with respect to whether he should be charged or tried, I do not see why the Committee should be denied the information it seeks.
There is no question that a prosecution of Dr. Hasan will raise a host of issues. His military and civilian counsel can be counted on to be zealous in his defense. Nonetheless, I do not see how affording the Committee the information it seeks concerning the government’s conduct before the shooting would adversely affect the course of justice, particularly if the Committee handles that information with discretion.
Certainly a public Congressional hearing or release of a public report on a matter such as this is likely to generate significant public interest. But public attention to the case is already high and will remain so given the circumstances. There will presumably be some difficulty ensuring that the members of the court-martial (military jurors), if one is convened, are impartial and able to render a judgment based on the evidence adduced in court and to follow the military judge’s instructions on the law. This difficulty arises from the publicity surrounding the attack, and any public Congressional activity will increase this difficulty only marginally, if at all. In any event, the military justice system has protections built in to guard against the effect of adverse publicity. These include changes of venue (moving any trial away from Ft. Hood) and, above all, careful “voir dire” examination of potential court-martial members (jurors). The system provides for unlimited challenges for cause to ensure that only those who can be impartial will serve. There is also provision for peremptory challenge of court-martial members.
Making Department of Defense and Federal Bureau of Investigation agents available to the Committee should have no impact on a trial. Based on what I have gleaned from news accounts and given the evidentiary standards prescribed in the Manual for Courts-Martial, I find it difficult to imagine why the trial counsel would have any occasion to call such agents to the witness stand in the event of a court-martial. If they were called, for example, during the sentencing phase (if the case were to reach that point), the defense could attempt to examine them as to any interviews they had with the Committee or staff. I offer no opinion as to how the Speech or Debate Clause of the Constitution might affect the defense’s ability to do so, but even if the defense could, I find it equally difficult to see this as a serious concern. At worst, it might slightly prolong direct or cross-examination.
Please let me know if I can be of further assistance.
Very truly yours,
Eugene R. Fidell
Senior Research Scholar in Law and
Florence Rogatz Lecturer in Law
Yale Law School