Should Major Nidal Malik Hasan, the Fort Hood Shooter, Face the Death Penalty Under the UCMJ?

On 5 november, 2009, Major Nidal Malik Hasan, calmly walked into the 'Soldier Rating and Processing Center' at Fort Hood, sat quietly with a bowed head for a moment, and then stood and shouted "Allah Akbar", and opened fire with two semi-automatic handguns. It has been well reported how the attack ended, with two Fort Hood civilian police officers engaging him in a gun battle and finally wounding him and ending the attack that left 13 people dead and 30 in the hospital injured and wounded. But the question is, should Major Hasan face the death penalty under the Uniform Code of Military Justice?

Unequivocally, the answer is, yes. As an active duty member of the United States Armed Forces, Major Hasan is clearly subject to the Uniform Code of Military Justice (UCMJ) and not any other law. While the alleged crime took place in Texas and on a federal government installation, Hasan could be subject to both state and federal law, but both are trumped by the fact that Hasan is an active-duty military member and that the crime was primarily against military members and civilian employees of the military.

An abbreviated review of Article 118 of the UCMJ regarding murder show the following:

Any person subject to this chapter whom without justification or excuse, unlawfully kills a human being, when he--

(1) has a premeditated design to kill;

(2) intends to kill or inflict great bodily harm;

(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life...

...is guilty of murder, and shall suffer such punishment as a court-martial may direct...  he shall suffer death or imprisonment for life as a court-martial may direct.

Whether one is for or against the death penalty on moral or other grounds, Major Hasan is subject to the UCMJ and the known facts of the case seem to place him squarely within the bounds or Article 118 and he will be subject to the death penalty. The case at trial will look at all the factors that led Hasan to act, and he may or may not be found guilty. Even if found guilty the court may decide life in prison more appropriate than death in this particular case. The modern military has seldom executed a soldier, even for murder. The last military member executed was Private John A. Bennett in 1961.

While it may be uncomfortable for the U.S. military to acknowledge a Muslim soldier could commit an act of violence against fellow soldiers, the UCMJ is clear and the military justice system is capable of handling this case and in fact must handle it regardless of where the verdict goes. If Major Hasan met the elements of the crime as laid out in the UCMJ then he can face the death penalty and that should be an option for the court. Many questions are being asked about how warning signs and indications of this soldier's mental stability and fitness to serve may have been missed or ignored by those around him, but that is a separate issue as to where he stands legally. The UCMJ is clear on where Hasan stands and it is up to the US Army to carefully and diligently investigate and prosecute this case. This is a potentially contentious case for the Army, but if the UCMJ is to have validity now and into the future, then it has to be used and followed carefully and the Army has to take Hasan's prosecution wherever it leads - even to the death penalty.