Diary

Jurisdiction of Ft Hood shootings

One aspect of the Ft. Hood shootings that I have not seen any discussion about is that of jurisdiction–that is, how is Maj Hasan going to be tried for this crime.

Let me preface this by saying that I am not a military lawyer, and am therefore not an expert in the details of this. However, I am a retired Air Force Master Sergeant. I spent about a year as the Additional Duty First Sergeant for two squadrons on two different bases. In that capacity, it was my job to advise the squadron commander on legal matters, among other things. I was the 1st Sgt when a member of my squadron was arrested and charged with a number of crimes including murder for hire. I also had to pick up a member of my squadron from the county jail following a DUI arrest downtown. Having said all that, I am not, as I stated previously, an expert on military law.

Civilians may not realize that members of the armed forces operate under two separate, sometimes parallel, legal systems. While we all, as American citizens, enjoy rights protected by our Constitution, members of the armed forces willingly restrict some of those rights. For instance, our free speech rights are rightly restricted while in uniform. No one would think that it is right for a military member to actively campaign for a candidate while wearing the uniform. Additionally, Constitutional protections are of little use while serving overseas. Chapter 47 of Title 10 USC establishes a separate legal system which applies to all military members, and applies to all places. It is called the Uniform Code of Military Justice, or UCMJ. (As an aside, the UCMJ applies to “Prisoners of war in custody of the armed forces.” Section 2 Art 2(9)) The UCMJ provides for legal jurisdiction, trials, sentencing, and describes punitive articles.  Strictly speaking, a military member who, say, is charged with DUI, may be tried, convicted, and sentenced in both a civilian court and under the UCMJ without violating double jeopardy.  However, it has been my experience that offenses committed off base are left to be punished off base.  Administrative action may be taken on base, but usually not punishment.

Keep the UCMJ in mind as you listen to the commentary from various major media sources. Chris Matthews recently wondered, on air, whether calling al-Qaida was a crime. Well, under the US Constitution, maybe not. However, under the UCMJ, it most certainly is illegal. Article 104 UCMJ, Aiding the Enemy, states (italic emphasis mine):

Any person who
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or [protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;
shall suffer death or such other punishment as a court-martial or military commission may direct.

Al-Qaida is certainly an enemy of the United States. If Maj Hasan communicated with al-Qaida, whether through an intermediary or not, committed an offense punishable by death under the UCMJ.

Other UCMJ Articles that Maj Hasan may have violated include Art 94, Mutiny or Sedition; Art 116, Riot or Breach of Peace; and Art 118, Murder. (italic emphasis mine)

Art 94, Mutiny or Sedition

(a) Any person subject to this chapter who–
(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;
(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court- martial may direct.

Art 116, Riot or Breach of Peace

Any person subject to this chapter who causes or participates in any riot or breach of the peace shall be punished as a court- martial may direct.

Art 118, Murder

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; or
(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson;
is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.

President Obama, under Article 22, has the authority to convene a General Court Martial, and he should do that. The installation commander has the authority to do this as well; however, given the national significance of this crime, I think the President should show some leadership. This crime was perpetrated (allegedly) by a military member, on a military installation, largely against other military members. UCMJ has jurisdiction over this crime, and that’s how it should be handled. This should not, under any circumstances, be tried in the civilian court system.

I predict that no matter how it is handled, the major media outlets will continue to show concern for Maj Hasan’s rights, as well as concern for the Muslim community as a whole, while paying lip service to the military community.