# Thought Piece:  Is it a war crime?



## Marauder06 (Dec 2, 2012)

Most of you know (and all of you should know) that US Army major Nidal Hasan is on trial over allegations that he shot and killed or wounded dozens of his unarmed Army colleagues at Fort Hood, Texas.

For this thought piece, assume that the JAG attorney currently prosecuting Hasan is contemplating abandoning charges under the UCMJ, and is contemplating charging Hasan with war crimes instead (this is NOT really happening). If you want to participate, simply respond to this thread with "I'm in," and I will assign you to debate a side of the following statement:



> "The crimes committed by Nidal Hasan were committed while he was acting as the agent of Al Qaeda, an organization currently involved in a global conflict with the US. As such, his actions are such that he should now be charged with War Crimes as defined by the International Criminal Court and the United Nations."


 
Points of View:
1) Hasan's actions can be considered war crimes.
2) Hasans's actions are not war crimes.

Here is a link to details of the shooting
Here is a link to what constitutes "war crimes"

*Important details*:
1)If you want to participate in this exercise, your first post in this thread should be, "I'm in" or something related.  After that, I will assign you to one of the two points of view above.  You can request to be assigned 1 or 2, but that doesn't mean you'll get it.

2)You are not allowed to provide an opinion in this thread unless you have previously been assigned a point of view by me.  I assign points of view so not everyone chooses one over the other and to keep the level of outside commentary down.  If you comment on something related to the topic without being assigned a point of view first, I'm just going to delete your post.  Sidebar commentary (i.e. "peanut gallery" comments) are allowed from people not participating in the debate, but providing your own opinion or substantively commenting on the posts of others participating in the debate is not allowed unless you, too, are in the debate as defined above.

3) Me assigning points of view means that you may have to debate this topic from a point of view that is different than what you currently believe. THAT IS THE POINT OF THIS EXERCISE.

4) You do not need to caveat your posts with something like, "I don't believe this in real life" or words to that effect. That immediately undermines your argument and taints everything you say afterwards. If you do that, I'm going to delete your post.  Act like you believe it; you'll do better research and make a better argument. There will be plenty of time to say what you really believe later.

5) We have done several of these exercises in the past, and people learn a lot. So keep it civil, keep it fun.

... and with that, game on!


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## Marauder06 (Dec 2, 2012)

JAB, HoosierAnnie and goon175 - I changed the rules after you three made your initial posts (see above). I thought all of you had good points but to keep this thread on track I soft-deleted what you wrote. I'm assuming that because of your earlier posts you're "in," so you're the first to be assigned points of view and can now make your arguments in support of the POVs listed below. If you don't remember what you wrote initially, let me know and I'll PM it to you. Goon, sorry but I hard-deleted your post, my bad brother, I hope you remember what you wrote.

POV 1:
JAB
dirtmover
CDG

POV 2:
HoosierAnnie
Goon175
SOWT


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## dirtmover (Dec 2, 2012)

I'm in


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## Marauder06 (Dec 2, 2012)

POV 1, back up JAB


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## dirtmover (Dec 2, 2012)

I knew it lol.


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## Marauder06 (Dec 2, 2012)




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## DA SWO (Dec 2, 2012)

I am in,


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## Marauder06 (Dec 2, 2012)

POV 2


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## Diamondback 2/2 (Dec 2, 2012)

> From  Wikipedia:
> Nidal Malik Hasan, USA (born September 8, 1970) is a United States Army officer and sole accused in the November 5, 2009, Fort Hood shooting, which occurred less than a month before he would have deployed to Afghanistan.
> 
> Born in Virginia to parents who moved to the United States from a Palestinian town near Jerusalem,[5] Hasan joined the Army while in college and became a psychiatrist at Fort Hood, Texas. Prior to the shooting, Hasan had expressed extremist views which had been brought to the attention of his superiors and the F.B.I. Hasan was discovered to have exchanged emails with the late Imam Anwar al-Awlaki asking for spiritual guidance regarding violence. Al-Awlaki has since been linked to other attacks by radical Muslims, and he quickly blessed the Fort Hood operation because it was against a military target. Al-Qaeda spokesman Adam Gadahn also praised the "Mujahid brother" as a "pioneer, a trailblazer and a role-model.
> ...


 
Okay I am using this as my opening supporting “research” and I also firmly understand that Wikipedia is not a 100% accurate source. However, I do believe the content quoted above to be accurate.

I think that Maj. Hassan was sleeper operative of the AQ network, through his close connection to al-Awlaki. I also think that through his connections to AQ, through al-Awlaki and with the understanding of al-Awlaki’s further direct involvement in other attacks on American forces/people throughout the world. That it sets a clear example that Maj. Hassan, joined the US Army with the intent to not support the war efforts against AQ or AQ-I. I also belief that his ability to situate himself as Medical Officer of psychiatry, allowed him to further conduct espionage type activities, under the radar of the general counterintelligence apparatus.  He was able to interview “combat veterans” directly home from the war, and was most likely exposed by proxy to classified/sensitive information on many levels.

Furthermore, we know that he remained in contact with his handler al-Awlaki, via email (and possibly through other means of communication) and was under investigation by the FBI almost 6 months prior to his attack on FT Hood. I think this paints the picture that Maj. Hassan was in fact a AQ operative, and was working with a know AQ cell leader al-Awlaki.



> Also from Wikipedia:
> 
> While the west remains divided on the question of Hasan's motives, many individuals and groups supported the operation in Islamist terms. After the Fort Hood shooting, on his now temporarily inoperable website (because the web hosting company took it down),[125] al-Awlaki praised Hasan's actions:[126]
> Nidal Hassan is a hero. He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.... Any decent Muslim cannot live, understanding properly his duties towards his Creator and his fellow Muslims, and yet serve as a US soldier. The U.S. is leading the war against terrorism which in reality is a war against Islam....
> ...


 
Maj. Hassan’s attack on unarmed soldiers was a war crime:



> Lawful conduct of belligerent actors
> 
> Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other distinctive signs visible at a distance, and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy’s uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.


 


He wore our uniform, to gain intelligence and position to attack, at which point he:



> Main article: Fort Hood shooting
> In the Fort Hood shooting, on November 5, 2009, a gunman reportedly shouted "Allahu Akbar!" ("God is greatest")[76][77][78] and opened fire in the Soldier Readiness Center of Fort Hood, located just outside Killeen, Texas, killing 13 people and wounding 29 others in the worst shooting ever to take place on an American military base.[4]
> 
> Sergeant Kimberly D. Munley encountered the gunman exiting the building in pursuit of a wounded soldier. Munley and the gunman exchanged shots; Munley was hit two times: once in her thigh and once in her knee, knocking her to the ground.[79] In the meantime, civilian police officer Sergeant Mark Todd arrived and fired at the gunman. The gunman was hit and felled by shots from Todd.[80][81] Todd approached the gunman and kicked a pistol out of his hand. Hasan was placed in handcuffs as he fell unconscious.[82] The incident lasted about 10 minutes.[83]
> ...


 
So Maj Hassan, calmly, took off that uniform, put on his jihad outfit, loaded up his weapon, concealed it, went and  prayed and used his military status to access a group of unarmed soldier, and proceeded to shoot them down in cold blood and was only stopped when he was shot and incapacitated himself. He has since maintained a Pro-AQ statement, and has continued to voice his beliefs in completing his mission for god aka AQ.

Just going off of the modern laws of war, he is guilty of war crime's, but to get real clear, "Murder" is covered under the modern laws of war, and at least we can all agree that he did do that.


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## HoosierAnnie (Dec 2, 2012)

In November of 2009 Maj Nidal Hasan fatally shot 13 and wounded 32 others at the Ft Hood medical processing center where, in his role of clinical psychiatrist, he was assigned to counsel service members both pre and post deployment. The JAG prosecutor intends to argue that the crimes committed by Maj Hasan were committed while he was acting as the agent of Al Qaeda, an organization currently involved in a global conflict with the US. As such, he should now be charged with War Crimes as defined by the International Criminal Court and the United Nations. This argument intends to prove that the actions taken by Maj Hasan, while premeditated and prosecutable under the UCMJ, are not war crimes.

While it is conceded that Maj Hasan did indeed, at minimum, maintain an email correspondence with a known al-Qeada sympathizer, the late Imam alAlawaki, nothing beyond Hasan’s seeking spiritual guidance in regard to violence has been proven in court. Maj Hasan is noted on numerous other occasions to have struggled with the conflicts of his Muslim faith and serving in the US military. No concrete link between al-Qeada and Maj Hasan has been established to date.


The crux of this entire argument hinges on establishing the actions as war crimes. For an action during an international conflict, as the prosecution maintains this is, to be deemed a war crime, then one of six conditions must be met:

 The following acts as part of an international conflict



Directing attacks against civilians
Directing attacks against humanitarian workers or UN peacekeepers
Killing a surrendered combatant
Misusing a flag of truce
Settlement of occupied territory
Deportation of inhabitants of occupied territory

Only one, "directing attacks against civilians" could have any possible bearing on Maj Hasan's actions. Many of the eyewitness accounts of his actions that day specifically point out that he seemed to be scanning the occupants of the room, passing over those obviously in civilian dress. In fact of the 13 killed, only 1 was a civilian.
At this point, this argument will make a counter assertion. That the actions of Maj Hasan are in fact not war crimes at all. Rather it is asserted that they are terriorist attacks on US service members by one of their own.
The FBI defines domestic terriorism as "the unlawful use or threat of force or violence by a group or individual based entirely in the US without foreign direction, committed on persons or people to intimidate or coerce the government of civilian populace thereof in furtherance of a political or social agenda".
Three international incidents, all with proven al-Qeada connections, the Mar '04 Madrid train bombings, the Jun '05 London bombings and the US Dec '01 Richard Reid "shoe bomber" have all been termed terriorist actions. Mr Reid was tried and later convicted in US Fed Court of "8 counts of terriorism". Even the US Senate's own report into Maj Hasan's actions have termed them "the worse terriorist attack on US soil since Septenber 11th."
The actions of Maj Hasan on that November day will be proven to be premeditated acts of extreme violence against his fellow service members. However reprehensible those actions are, they are not war crimes but more appropriately the acts of a domestic terrorist.


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## HoosierAnnie (Dec 2, 2012)

OK all I have no idea why all the font changes occurred as i changed it all to Arial #3 before i posted it


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## SkrewzLoose (Dec 2, 2012)

Did they ever get this guy to shave?


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## Marauder06 (Dec 2, 2012)

HoosierAnnie said:


> OK all I have no idea why all the font changes occurred as i changed it all to Arial #3 before i posted it


 
I went in and highlighted everything in your post and then changed it to Arial 4 point. Is that better?


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## HoosierAnnie (Dec 2, 2012)

Marauder06 said:


> I went in and highlighted everything in your post and then changed it to Arial 4 point. Is that better?


 Danke, mein herr


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## Marauder06 (Dec 2, 2012)

Compliments to both JAB and HoosierAnnie for thoughtful and well-researched pieces. I think both of you have great points. I have to go to bed soon but I'm looking forward to seeing how this thread develops and I hope more people get involved in the discussion.


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## Diamondback 2/2 (Dec 3, 2012)

To show Maj. Hassan’s crimes are in fact “war crimes” we only need to prove the following:

· That the acts he carried out were against the laws of war.
Murder is the easiest one to prove.
· He was bound by the laws of war.
All US Military personnel are bound by the laws of war.
· He was fully aware of the laws of war.
He was trained annually on the laws of war, as required by all US Army personnel.
· That he was free of any mental defect.
The hardest IMHO to prove at this point without knowing the particulars to the evidence being used in his trial. However, many mental health professionals have stated on the record that he was carrying out a radical Islamic attack and that was not due to his mental health.
· That he made a clear minded decision to break the laws of war.
I think the fact that he was observed by many as he gave away his furniture, took time to go pray and stroll on up to FT Hood. And that the people who all observed him and all agreed that he looked calm and collected, even some stated he seemed totally relaxed, proves that he was in fact. Clear headed and fully aware of the crimes he was about to commit.


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## CDG (Dec 3, 2012)

I'm in.


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## Marauder06 (Dec 3, 2012)

POV 1 with JAB and dirtmover.


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## Marauder06 (Dec 3, 2012)

SkrewzLoose said:


> Did they ever get this guy to shave?


 
They ordered him to do it, and he refused on religious grounds.  AFAIK he's still flaunting the regs, and still receiving an Army paycheck.


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## dirtmover (Dec 3, 2012)

I will post tonight after I have had a chance to sleep....and I promise I won't take as long Mara and his previous case studies...though as of late he has been pretty good.


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## DA SWO (Dec 3, 2012)

JAB said:


> To show Maj. Hassan’s crimes are in fact “war crimes” we only need to prove the following:
> 
> · That the acts he carried out were against the laws of war.
> Murder is the easiest one to prove.
> ...


 
They are not war crimes, because it was carried out against a legitimate Military Target (uniformed personnel), by an individual who was in uniform at the time.

They US Military has a history of Blue on Blue attacks (generally referred to as fraging) and has never charged those individuals as war criminals, to do so in this case would be a violation of precedent.


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## Diamondback 2/2 (Dec 3, 2012)

SOWT said:


> They are not war crimes, because it was carried out against a legitimate Military Target (uniformed personnel), by an individual who was in uniform at the time.
> 
> They US Military has a history of Blue on Blue attacks (generally referred to as fraging) and has never charged those individuals as war criminals, to do so in this case would be a violation of precedent.


 
First, not fair, you have a JAG LTC to gain advice. Second I can still argue the issue.

It was my understanding that he wore an Islamic white robe (man-dress).



> But regardless: Lawful conduct of belligerent actors
> Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other distinctive signs visible at a distance, and the carrying of weapons openly.* Impersonating soldiers of the other side by wearing the enemy’s uniform is allowed, though fighting in that uniform is unlawful *perfidy, as is the taking of hostages.


 

He attacked a Soldier Readiness Center that has the primary function of medically screening soldier prior to deployment. This would be covered under:



> Red Cross, Red Crescent and the white flag
> Modern laws of war, such as the 1949 Geneva Conventions, also include prohibitions on attacking doctors, ambulances or hospital ships displaying a Red Cross, a Red Crescent or other emblem related to the International Red Cross and Red Crescent Movement. It is also prohibited to fire at a person or vehicle bearing a white flag, since that indicates an intent to surrender or a desire to communicate.
> 
> In either case, persons protected by the Red Cross/Crescent or white flag are expected to maintain neutrality, and may not engage in warlike acts; in fact, engaging in war activities under a protected symbol is itself a violation of the laws of war known as perfidy. Failure to follow these requirements can result in the loss of protected status and make the individual violating the requirements a lawful military target.


 
Going back to the he is a terrorist argument as well.



> On September 10, 2010, the Bipartisan Policy Center released the report "Assessing the Terrorist Threat" which concluded that "in 2009 at least 43 American citizens or residents aligned with Sunni militant groups or their ideology were charged or convicted of terrorism crimes in the U.S. or elsewhere, the highest number in any year since 9/11". They included Fort Hood and the 2009 Little Rock recruiting office shooting as the two successful terrorist attacks, even though neither case has been prosecuted as such.[168
> 
> *As of 2012, the Department of Defense continues to classify the attack as an act of workplace violence, despite the suspect's ties to Al Qaeda, based on the need to "maintain the integrity of the legal case against Mr. Hasa*n."[12]


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## HoosierAnnie (Dec 3, 2012)

JAB - You keep citing "rules of war". Now granted, I'm just a civilian, but to me, rules of war pertain only while the involved persons are "in theatre". I conceed that Texas does get a might crazy on a Saturday night, but I do not believe that it has become a battlezone. The acts of Maj Hasan occurred neither in theatre nor in a recognized POW detention facility (per the war crimes definition I quoted in the section pertaining to violations of the Geneva Convention). As such, I continue to maintain these are not war crimes. But, rather vicious acts of home grown terriorism against his fellow soldiers.Going back to the he is a terrorist argument as well.

On September 10, 2010, the Bipartisan Policy Center released the report "Assessing the Terrorist Threat" which concluded that "in 2009 at least 43 American citizens or residents aligned with Sunni militant groups or their ideology were charged or convicted of terrorism crimes in the U.S. or elsewhere, the highest number in any year since 9/11". They included Fort Hood and the 2009 Little Rock recruiting office shooting as the *two successful terrorist attacks*, even though neither case has been prosecuted as such.[168

As of 2012, the Department of Defense continues to classify the attack as an act of workplace violence, despite the suspect's ties to Al Qaeda, based on the need to *"maintain the integrity of the legal case against Mr. Hasan*."[12]​You realise that these arguments strengthen MY side of the case.


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## Diamondback 2/2 (Dec 3, 2012)

HA, if the rules of war only applied to a theater of war (forgetting that this is a defined as a global war) why would we be engaging combatants outside of the theater of war. Furthermore, why would we afford captured combatants outside of the theater of war, protected status under the rules of war. The laws of war apply, regardless of the geographical location.

The key here is the defining of the attack (where most political and governmental officials agree it was an attack of terrorism through Islamic means) it is clear to me that the reason it is not officially being declared a terror attack, is due to the current prosecution attempt to keep it within the current military court frame work.

It also supports my own. ;)


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## HoosierAnnie (Dec 3, 2012)

JAB said:


> HA, if the rules of war only applied to a theater of war (forgetting that this is a defined as a global war) why would we be *engaging combatants outside of the theater of war*.  ;)


 Please cite an example. And remember, I grew up during the VietNam Era.


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## Diamondback 2/2 (Dec 3, 2012)

Example: OBL was engaged in Pakistan (not Afghanistan); he was killed, and then given proper burial at sea.

Again this is the GLOBAL WAR ON TERRORISM meaning that the theater of war is “Global” and not defined by a geographical location. The initial attack Sep 11, 2001 was on US Soil, as was the Maj. Hassan attack.

I am not going to list every incident, but Kill/Capture has been going on globally since the war began. Also, we have afforded captured combatants, which were captured outside of the defined theater of war, protected status under the laws of war.

The rules of war are consistently being reevaluated and redefined due to the type of warfare we currently are engaged in. I have been using simple open source Wikipedia info b/c I am lazy in my argument, but at the end of the day, the rules of war argument is an ongoing battle for the US Military as a whole. I personally believe that the rules need to be re-written, as they are limited in context to begin with. The argument that I can make that Maj. Hassan was covered and bound by the rules of war, is left open for argument because of the lack of context in defining the current combatant, or actors.

That said, it is clear that CONUS has been under constant attack since 9-11-01, by the Islamic radical actors, with the sole purpose of mass killing of American citizens. I really can’t see how the argument can be made that Maj. Hassan’s attack does not fall into this exact picture of the current battlefield.


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## dirtmover (Dec 3, 2012)

Did Hasan kill soldiers yes but if you look at International Humanitarian Law (IHL) which the stipulations for war crimes is derived from you would find the following:
Art. 23. Besides the prohibitions provided by special Conventions, it is especially prohibited
(a) To employ poison or poisoned arms;
(b) To kill or wound treacherously individuals belonging to the hostile nation or army;
*(c) To kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion;*
(d) To declare that no quarter will be given;
(e) To employ arms, projectiles, or material of a nature to cause superfluous injury;
*(f) To make improper use of a flag of truce, the national flag or military ensigns and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;*
(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.
(Bolding is my addition)
http://www.icrc.org/ihl.nsf/FULL/150
So obliviously he was/is not on our side so that makes him our enemy and he killed and maimed unarmed “enemy” which is a direct violation of ART 23 of the IHL. Being unable to find any accounts of what he was wearing; one could safely assume that he was wearing his uniform while committing his heinous act.

Now that we have established that he is in violation of the IHL which meets the criteria of a war crime, one must differentiate his act from normal work place violence. Hasan has been in contact with a know terrorist in Anwar al-Awlaki. By not notifying his chain of command or counter intelligence personnel, he was aiding a terrorist and by proxy aiding a terrorist organization, which would classify him as an enemy combatant.


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## HoosierAnnie (Dec 3, 2012)

But dirtmover, at the time he did it, he was an active duty American soldier. How can you then designate other American soldiers, in a legal sense, as the enemy??


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## Marauder06 (Dec 3, 2012)

OK- tomorrow night we'll ENDEX the closed discussions and open it up to a free-for-all.  This has been a very good discussion so far, and I'm interested to hear (after ENDEX) what the participants really think.

So, if you wanted to participate in this exercise, or if you are a participant and wanted to get a couple of last shots in, do so in the next 24 hours.


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## dirtmover (Dec 4, 2012)

Based on the information in my post, Hasan could now be classified as an enemy combatant due to his relationship with al-Awlaki, which would make the American soldiers his enemy.


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## CDG (Dec 4, 2012)

HoosierAnnie said:


> But dirtmover, at the time he did it, he was an active duty American soldier. How can you then designate other American soldiers, in a legal sense, as the enemy??


 
Hasan provided ipso facto evidence of his defection to Al-Qaeda through the nature of his relationship with al-Awlaki and his pre-meditated plan to kill US soldiers in the name of Allah.


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## HoosierAnnie (Dec 4, 2012)

I have noticed that none of us have touched the obvious mental instability this man exhibited over months if not years before the incident.


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## DA SWO (Dec 4, 2012)

JAB said:


> First, not fair, you have a JAG LTC to gain advice. Second I can still argue the issue.
> 
> It was my understanding that he wore an Islamic white robe (man-dress).
> 
> ...


 

She is on your side.

You are close with your second bullet, go a little deeper.

Man-dress is not prohibited on Ft Hoodlum.  There are no provisions against wearing non-uniforms when off duty.


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## Marauder06 (Dec 4, 2012)

OK- I'm calling ENDEX on this exercise, my gratitude to the participants for some very thoughtful posts.  Participants are invited to share their true feelings on the POVs in this thread (if they differ from the one to which they were assigned) and it is now "open discussion" for all site members.


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## Diamondback 2/2 (Dec 4, 2012)

Okay I am  going to re-post my original post to the thread before it was changed to a Mara-learning topic. 



> You could argue that Maj. Hassan was an AQ operative through his religious connections to al-Awlaki. You could then argue that b/c he was an operative of AQ, and he joined the US Army with the intent to kill American Soldiers, that it was a war crime. But I think the amount of investigation, the amount of money spent to connect all of those dots, would be better spent elsewhere. Either way you look at it, Maj. Hassan committed a terrorist attack on US soil, on a military installation, and he deserves to die a trader’s death, at a minimum.
> 
> Personally, I wish they would drag that son-of-a-bitch out of his wheelchair into street down on Battalion Rd in FT Hood, and publicly execute him with an M9 to the back of the head, while the entire Three Corps & subordinate units are watching. Then hook his worthless body to the back of a track and drag it all the way to North FT Hood, on every single tank chewed up road they can find. After which they should string his sorry ass crippled, dead, dragged body on a M1 Abrams target and use him for target practice until there is nothing left.


 

I will stick by my original post and it is my opinion on how Maj. Hassan should be handled. Was his actions a war crime? Yes I do think the argument can be made. Do I think it matters? NO. He is a trader, a terrorist and a mass murder. There is no question to his guilt, not question of evidence in these actions. He does not deserve to drag our court systems down (be it military, civilian or international). He is guilty, his punishment should be swift and the punishment should fit the crime….period.

That all said, I enjoyed the debate and I do agree with several of you on your stances as well. I just simply think they really don’t matter at this point. It’s time to bring this tragic incident to a close, as a country and a military force; it’s time to move on. Burn this shit-bag at the stake, and let’s get back to life.

Respectfully,


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## CDG (Dec 5, 2012)

I actually do not think what he did can be considered a war crime.  I had a difficult time coming up with a cogent argument for his actions being a war crime and the one short post I made was really reaching, IMO.  An act of treason and terrorism that deserves the death penalty?  Absolutely.  But under the legal definition of "War Crimes", I do not think this classifies as one.


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## Marauder06 (Dec 5, 2012)

I think it could be considered a war crime.  Here is my reasoning:  Hasan was acting as a soldier of Al Qaeda, an organization known to be at war with the United States.  However, he was simultaneously in the employ of the US Army.  He did not declare himself as a combatant of Al Qaeda (well, I suppose when he yelled "Allahu Akbar" and starting shooting people, it was implied), did not carry arms openly, and exercised perfidy in order to "treacherously kill or wound" others.  Committing perfidy while acting as an unlawful combatant on behalf of a terrorist organization not bound by nor protected by the Geneva Protocols or the Law of Armed Conflict make be believe that what he did could in fact be considered a war crime.

Having read through the well-researched and well-worded posts of other members, I now recognize that there is a hole in my logic; if Hasan did not commit his crimes while dressed in a US Army uniform, then I might have to revisit some fundamental aspects of my rationale.

At any rate, below is an excerpt from a paper I handed a week or so ago, this paper on war crimes is what made me think about Hasan.

/////


In November of 2009, US Army major Nidal Hasan, a Muslim chaplain, allegedly opened fire on a group of fellow Soldiers gathered at Fort Hood, Texas, killing 13 and wounding 32 before himself being shot and disabled by responding military police.[1] Hasan’s attack against his fellow Soldiers was characterized as a “lone wolf attack” in a special report prepared by a US Senate committee.  Hasan had made the decision to conduct an act of mass murder through a combination of self-radicalization and through a series of sermons made by, and later direct communication with, Anwar al-Awlaki.  Awlaki was an American-born terrorist leader within Al Qaeda’s franchise in Yemen, and had conspired with Hasan and others to attack Americans and American interests.[2]  Hasan was charged by the Uniform Court of Military Justice with 13 counts of pre-meditated murder and 32 counts of attempted pre-meditated murder for his alleged crimes.  Charges of war crimes were not pursued.  But, could they have been?

            At first blush, it would seem obvious that what happened at Fort Hood was not a war crime.  It was carried out by a US Soldier, on US soil, and was conducted against US citizens.  But let’s take a closer look at the situation.  Al Qaeda declared war on the United States in August of 1996, and in case we didn’t get the message the first time, they declared war again in 1998.[3]  Both the US and Al Qaeda see their conflict as a “global war,”[4] and attacks can and have taken place in a variety of locations, including the US.  In allegedly carrying out attacks against his fellow Soldiers, Hasan was acting as a soldier for Al Qaeda.  The Geneva Conventions generally allow targeting of hostile military personnel wherever they are found, and whether they are armed or not (none of the Soldiers shot by Hasan were armed).  However, the Conventions only apply to legitimate combatants.  As a terrorist organization, Al Qaeda does not follow the Conventions or the Law of War in general, and their fighters are therefore considered unlawful enemy combatants.[5]  Therefore, the act itself was a crime.  But does it rise to the level of a war crime?  

            Hasan carried out his attacks dressed as a US Soldier while he was actually acting as a soldier of Al Qaeda, in effect wearing the uniform of the adversary (i.e. the US), which is a specifically prohibited act.[6]  By disguising himself as a US Soldier when in fact he had gone over to the enemy allowed Hasan to kill and wound “treacherously a combatant adversary” (i.e. US Soldiers).  This sort of act is specifically numerated in the Rome Statute as one of the “serious violations of the laws and customs applicable in armed conflicts” which constitutes a war crime.[7]  Given the state of war that existed between Al Qaeda and the US, the fact that Hasan acted treacherously, and that he killed and maimed in the commission of an act specifically designated as a war crime, it seems that upon further examination that a war crime was, in fact, committed.

[1] http://topics.nytimes.com/top/reference/timestopics/people/h/nidal_malik_hasan/index.html
[2] http://topics.nytimes.com/topics/reference/timestopics/people/a/anwar_al_awlaki/index.html
[3] http://www.heritage.org/research/projects/enemy-detention/al-qaeda-declarations
[4] http://www.strategicstudiesinstitute.army.mil/pdffiles/pub207.pdf
[5] http://www.juridicainternational.eu/index.php?id=12632
[6] http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule62
[7] http://untreaty.un.org/cod/icc/statute/romefra.htm


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## Teufel (Dec 5, 2012)

I think that he is guilty of murder, not war crimes.  He may have been working for Al Qaeda, but he was still an American soldier at the time.  He wasn't wearing the "enemy's uniform", he was wearing his own uniform.  That makes him a traitor and a murderer, not a war criminal.  I think you would also have to prove that he was working for Al Qaeda and not just communicating with Al Qaeda to make a case for war crimes.  

For a parallel example, Aldrich Ames was convicted as a traitor for selling secrets to the Russians, not as a Russian spy conducting illegal espionage in our country.  I agree with SOWT.  I think this has to be treated as a internal criminal act and not a case of illegal warfare.  There are legal ramifications to both charges as well.  A murderer and traitor goes to prison for a long time.  I'm not sure what you would do with a war criminal other than send him to Guantanamo.  I don't think you can send a war criminal to a normal American prison.


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## Marauder06 (Dec 5, 2012)

Teufel said:


> I think that he is guilty of murder, not war crimes. He may have been working for Al Qaeda, but he was still an American soldier at the time. He wasn't wearing the "enemy's uniform", he was wearing his own uniform. That makes him a traitor and a murderer, not a war criminal. I think you would also have to prove that he was working for Al Qaeda and not just communicating with Al Qaeda to make a case for war crimes.
> 
> For a parallel example, Aldrich Ames was convicted as a traitor for selling secrets to the Russians, not as a Russian spy conducting illegal espionage in our country. I agree with SOWT. I think this has to be treated as a internal criminal act and not a case of illegal warfare. There are legal ramifications to both charges as well. A murderer and traitor goes to prison for a long time. I'm not sure what you would do with a war criminal other than send him to Guantanamo. I don't think you can send a war criminal to a normal American prison.


 
The difference in the Ames case is that espionage AFAIK isn't considered a war crime by anyone.  It is still a crime to the country it is committed against, but it's not a war crime. 

I think the evidence linking Hasan to AQ is pretty clear, and that the "reasonable person" standard would indicate beyond a reasonable doubt that he was acting on behalf of AQ.

All of that said, while I do think that what he did could be considered a war crime, I think the USG made the right call in prosecuting him under the UCMJ and not referring him to the Hague to be charged for war crimes.  So I don't have to type it all out again, here's a cut/paste from my paper:

     Having explained why I think Hasan committed by a war crime, I am now going to state why I think he should not be handed over to the ICC for prosecution.  My reasons are political, professional, and pragmatic.  To begin with, as previously established the US is not a signatory to the Rome Statute and does not hand its citizens over to the ICC to be tried for war crimes in the first place, even those troops suspected of killing other soldiers.  Politically, it would be an insufferable impingement on our national sovereignty and our Constitution to recognize an authority higher than our Constitution, which in effect is what we  would be doing if we agreed to hand over our citizens for trial.   Professionally, having the threat of an ICC subpoena hanging over the heads of troops deployed to support US or UN-led missions abroad would be damaging to morale and would limit the initiative, and therefore effectiveness of, our men and women in uniform.  Finally, there is the aspect of pragmatism.  For all its flaws, the US justice system and the military’s UCMJ work.  Americans tend to have a dim view of the UN and all of its attendant bodies, and the US justice system is sufficient to preserve discipline, punish transgressors, and provide deterrence without the “meddling” of the UN, an organization that of which nearly half of Americans have a negative opinion.[1]  Simply put, it is simply not necessary for the US to hand over accused war criminals; we can do an ample and perhaps even better job of handling it on our own.

[1] Rasmussen reports that at least 49% of Americans have a “negative view of the United Nations.  Source:  http://www.rasmussenreports.com/public_content/politics/current_events/united_nations/49_view_united_nations_unfavorably


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## Teufel (Dec 5, 2012)

That's true with regards to espionage.  I guess I meant to make a similar point you did; you can make a case for war crimes but it's best to charge him under the UCMJ.


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## Chopstick (Jan 27, 2013)

Im just livid that Hassan is still exchanging gasses. I cannot imagine how the families of his victims put up with this stupidity.
http://www.military.com/daily-news/...nts-death-penalty-out.html?comp=7000023317843



> Defense attorneys said Hasan wants to plead guilty to 13 counts of premeditated murder, but Army rules prohibit a judge from accepting a guilty plea in a death penalty case. If the death sentence is removed, Hasan's punishment would be life without parole - which he already faces if convicted of the 32 counts of attempted premeditated murder in the 2009 attack on the Texas Army post.
> 
> 
> Defense attorneys argue that Hasan should be spared a possible death sentence because his rights have been violated - including by the former judge who ordered that Hasan's beard be forcibly shaved. Hasan first showed up in court in June with a beard, later saying it was required by his Muslim faith, but facial hair violates Army rules.
> Defense attorneys also claim Fort Hood's commanding general was not impartial when he decided in July 2011 that Hasan would face the death penalty, and had been influenced by high-ranking government officials. Hasan, an Army psychiatrist, has not yet entered a plea.


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## Totentanz (Aug 23, 2013)

Well, it appears that's of no consequence; he's been found guilty of all charges.


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## Marauder06 (Aug 23, 2013)

Great; he's guilty.  Now:

1) Shave off his freakin' beard.
2) Stop paying him any money.  At all.
3) Make the right call and declare what he did a terrorist attack and not "workplace violence."


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## Totentanz (Aug 23, 2013)

Marauder06 said:


> Great; he's guilty.  Now:
> 
> 1) Shave off his freakin' beard.
> 2) Stop paying him any money.  At all.
> 3*) Make the right call and declare what he did a terrorist attack and not "workplace violence."*



Especially when his only (albeit denied) defense was predicated on him defending our enemies.


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