Few doubted that Army Major Nidal Hasan would be found guilty in his military trial, which resumed last week, especially given his self-identification as the shooter who killed 13 and injured 31 in Fort Hood, Texas in 2009. Beyond issues of guilt and innocence, however, are controversies surrounding his charges and his plea, two major factors that will affect whether he receives life in prison or the death sentence.

Texas Tech law professor, former staff judge advocate at Fort Hood, and Thomson Reuters key author Richard Rosen shared his perspective on Wednesday with Brian Lehrer on WNYC. Rosen’s experience with and insight into the military court system brought forth important facts in considering two major questions.

Is Hasan seeking martyrdom by lethal injection?

Many have assumed that Hasan’s plea of ‘not guilty’ is an attempt to receive a more extreme sentence (the death penalty) given that a guilty plea in most cases could allow a more lenient sentence. Rosen laid out the facts:

  • Defendants in a military trial may not plead guilty to a capital offense, such as premeditated murder.
  • The judge in this case did not allow a guilty plea for attempted premeditated murder because of the prejudice it may cause in questions of guilt or innocence of premeditated murder.
  • Even if Hasan is sentenced with the death penalty, he will likely sit on death row for decades – the military has not carried out an execution since 1961.

Although one report shows Hasan self-professing his intent to become a martyr, he has denied that characterization in court and via his civilian attorney in the media.

Why is he on trial for premeditated murder and not an act of terror?

Although Hasan has admitted his intentions to prevent his victims from taking up arms against Muslims, he has not been charged with ‘terrorism’. Many callers into Lehrer’s show expressed disappointment in this, but Rosen laid out the facts:

  • Terrorism  is not a crime under military code; therefore Hasan cannot be tried as a terrorist.
  • In charging Hasan with only the most extreme offenses (13 counts of premeditated murder and 31 counts of attempted premeditated murder), the government simplifies the case by getting around more minor charges which can raise needless appellate issues.
  • This trial has been pending for four years, as opposed to a typical time frame of weeks or months for a court-marshal. So, although evidence has arisen since 2009 that Hasan was attempting to defend Taliban leadership, a change of charges to aiding the enemy, for example, would require the process to start over again.

Although military code does not recognize terrorism as an official offense, Rosen ensured listeners that Hasan is being charged with the highest offenses possible.

To hear the entire segment, visit the WNYC website, and to join the conversation, share your thoughts on this case and military law in general below.

UPDATE: A military jury today convicted Army Maj. Nidal Hasan of 13 counts of premeditated murder in a November 5, 2009, shooting rampage at Fort Hood, Texas, making it possible for the death penalty to be considered as a punishment.