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Tuesday, September 3, 2013

The Rare Case Of The Military Execution

Maj. Nidal Malik Hasan sits in court for his court-martial in Fort Hood, Texas, in this Aug. 6, 2013, courtroom sketch. (Brigitte Woosley/AP)

Maj. Nidal Malik Hasan sits in court for his court-martial in Fort Hood, Texas, in this Aug. 6, 2013, courtroom sketch. (Brigitte Woosley/AP)

If Army Maj. Nidal Hasan is eventually executed, he will be the first person put to death by the U.S. military in more than 50 years.

Hasan, who was sentenced to death last week after being convicted of killing 13 people at Fort Hood in 2009, also faces what could be years of appeals, even though he did not really defend himself at his trial.

“He was basically a spectator, and I think wanted it over as soon as possible,” Eugene Fidell, an expert in military justice, told Here & Now. “He’s a most unusual litigant.”

The good news is that our military death penalty arrangements are somewhat better than they were when Private Bennett was executed.

– Eugene Fidell

Hasan is now being held on death row at Fort Leavenworth in Kansas, along with five other soldiers who have been sentenced to death.

Army Private John Bennett was the last person put to death by the U.S. military. He was hanged in 1961 after being convicted of raping and attempting to kill an 11-year-old girl in Austria.

Fidell said that Private Bennett’s case was problematic because it was inflected by racial overtones.

“The Kennedy administration was particularly concerned that there had been a series of executions of African-American soldiers,” Fidell said.

Despite the Kennedy administration’s concerns, President Kennedy did not intercede on Bennett’s behalf and commute Private Bennett’s sentence.

However, since Private Bennett’s execution, the guidance for putting a soldier on death row has changed.

“The good news is that our military death penalty arrangements are somewhat better than they were when Private Bennett was executed in 1961,” Fidell said. “Specifically we now have a regulation in the manual for courts-martial that at least begins to guide the exercise of discretion so that jurors — or as they are called, members — of the court martial aren’t completely at sea in terms of deciding who should be executed and who should not.”

Nidal Hasan was convicted in the deadly 2009 shooting rampage at Fort Hood in Texas. (Bell County Sheriff's Department via AP)

Nidal Hasan was convicted in the deadly 2009 shooting rampage at Fort Hood in Texas. (Bell County Sheriff’s Department via AP)

Fidell says the issue with death penalty cases prior to regulation was that there was “unfettered discretion in sentencing.”

“Private Bennett’s case is still very instructive because it shows how the system operates when there are no landmarks to guide the exercise of discretion,” he said.

Additionally, there might be major institutional changes on the horizon regarding who gets to decide whether to charge a service member with a serious crime.

Fidell cites Senator Kirsten Gillibrand’s bill which would “get rid of this anachronistic system where commanders — not lawyers — make the decision to prosecute people for serious offences,” Fidell said. “I’m not talking about minor disciplinary things, I’m talking about murder, rape, arson and so forth.”

The Hasan case was one of three high-profile military trials this summer.

Staff Sgt. Robert Bales was sentenced to life in prison without the chance of parole for massacring 16 Afghan civilians. Army Pfc. Bradley Manning (who is now asking to be called Chelsea Manning) was sentenced to 35 years in prison for giving a trove of military and diplomatic secrets to the website WikiLeaks.

“It’s beyond anything in my experience,” Fidell said of the trials this summer.

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