RUTHFULLY YOURS

Obviously, by leaps and bounds, the answer is (a). And for this reason, among several others, it is patently disgraceful that the Obama administration and its minions in the hyper-politically correct Pentagon brass are denying those soldiers shot by Hasan the military honors they are due — long overdue, actually – from having been wounded by an enemy operative in a wartime terrorist attack.

Speciously, military prosecutors are arguing that granting Purple Heart awards to the wounded victims would somehow prejudice Major Hasan’s upcoming trial because it would be tantamount to a branch of the government rendering a judgment that he is a terrorist and therefore already criminally culpable. The White House’s hacks at the Defense Department — both uniformed and non-uniformed — are reportedly trying to run this same jive by lawmakers, several of whom are incensed by the slight to the wounded. If they are capable of shame, administration officials ought to be ashamed by this frivolous claim, which dishonors not only Hasan’s victims but also the military justice system itself.

It has always been the proud boast of the military justice system that a truly innocent person has a better chance of being acquitted there than in the civilian system. That is because military trials are typically decided by panels of commissioned officers. For them, there is a solemnity about following orders that is unmatched by cross-sections of the general public who serve as petit jurors in civilian trials.

The military judge will instruct the panel that the case is to be decided solely based on the evidence presented in court – specifically, whether it establishes the elements of the offenses charged against Hasan. The jurors will be directed that they are not to decide the case based on outside publicity or any findings already made by other government officials – including in probes by the armed forces. In the trial, it will be for the panel alone, based on its assessment of the testimony and other evidence presented in court, to decide whether Hasan is guilty. There is a presumption in both the civilian and military systems that juries follow those instructions. We can have full confidence that, in the military system, the panel will honor the instructions of the court.

The administration-driven suggestion that the panel hearing Hasan’s case will be swayed by the awarding — or, for that matter, the non-awarding — of Purple Hearts is a slander on the military justice system. It is tantamount to saying we should presume that officers of the United States armed forces will defy their orders – which would itself be a profound offense under the Uniform Code of Military Justice.

Put law and honor aside for a moment, though. The Purple Heart argument is risible as a matter of common sense. Until a few days ago, no one was even thinking about Purple Hearts, much less that there was a controversy over them. Yet virtually everyone who knows anything about the Fort Hood jihadist attack knows that — like many aggressors charged with murder in American courts — Hasan has been detained without bail because of both the dangerousness he manifestly poses to the community and the flight risk his palpable guilt implies (notwithstanding his paralysis). Furthermore, there has been far more publicity about the fact that Hasan’s attorneys represented that Hasan was prepared to plead guilty on at least some of the charges than about the Purple Heart issue.

It is thus absurd to suggest that the award of Purple Hearts to Hasan’s victims would be incurably prejudicial to the military court’s ability to give Hasan a fair trial but, somehow, that his pretrial detention for four years and his desire to admit guilt would not.

In reality, none of these matters should affect the trial in the slightest. In a criminal trial, the conclusions of other fact-finders about matters relevant to the guilt or innocence of the accused are inadmissible. This is because, in our system, the verdict must be rendered by the jury. Trial judges thus make every effort to keep conclusions by outside factfinders from the jurors — just as jurors are constantly told to avoid reading media accounts about the case.

Of course, juries will often know or learn about extrajudicial factfinding anyway. After all, a defendant would not be standing trial in the first place unless government lawyers had determined he was guilty (it is unethical to prosecute otherwise). There would also be no trial unless a grand jury (or its military equivalent, an Article 32 investigative body) had been persuaded that there was sufficient cause to indict.

Moreover, it is often very obvious that defendants on trial — especially in a murder trial — are incarcerated. Invariably, there is heavy security in the courtroom; sometimes the trial testimony touches on things that happened in jail, unavoidably bringing the defendant’s detention to the fore; and sometimes the lawyers or the defendant himself will blurt out something that makes it clear that the defendant, though presumed innocent, is in custody and thus, in a sense, being treated as if he is already guilty.

Juries, however, are always instructed to ignore these things and decide the case based solely on their own assessment of the proof. The law presumes that jurors follow these instructions — and experience shows that jurors tend to weigh the evidence carefully in deliberations and to acquit where the evidence is weak. And again, military officers on a panel must be trusted to follow legal instructions not to factor in conclusions by outside investigators — the awarding of Purple Hearts to Hasan’s victims no more proves his guilt than the denial of Purple Hearts proves his innocence.

Most preposterous of all to this former prosecutor is the military’s silly assertion that awarding the Purple Heart to Hasan’s victims would enable Hasan’s lawyers to claim prejudice. Much of what prosecutors do in litigation involves responding to frivolous defense motions – that’s the job. Claims that defense lawyers now have no real chance of succeeding routinely get posited anyway, for two reasons: (a) Defense counsel seed the appellate record with any conceivable reason to get a conviction overturned (if counsel fails to raise a matter, it is deemed waived, so the lawyer’s incentive is to raise everything); and (b) defense counsel realize that, if the defendant is convicted, they will inevitably be accused of having performed incompetently – by making lots of motions, even weak ones, counsel help the reviewing court conclude that counsel provided zealous defense.

If I were a government lawyer, I’d be licking my chops to respond to defense lawyers who were claiming prejudice based on awarding Purple Hearts to the victims. Not only are the victims extraordinarily sympathetic – and some of them performed heroically. Remember that we’re talking here about a “Purple Hearts are prejudicial” claim being advanced by lawyers who themselves have already announced that Hasan wanted to plead guilty. Many litigation arguments are stressful. For a prosecutor, that one would be fun.

Hasan was an international terrorist plant who infiltrated our military and killed and wounded our troops in an atrocity that claimed many more lives than the jihadist bombing of the World Trade Center in 1993. He was not merely a domestic imitator of al Qaeda; he was in frequent communication with Anwar al-Awlaki. Awlaki was a significant al Qaeda operative according to the Obama administration. That’s why the president authorized his killing — which would be a murder if it were not justified by Awlaki’s status as an enemy combatant under the laws of war.

Palpably, what Hasan executed, with Awlaki’s encouragement, was a jihadist atrocity — one that precisely targeted American armed forces personnel who were about to deploy to war zones to fight Hasan’s fellow jihadists.

To be sure, Hasan’s situation is highly embarrassing for the government. His communications with Awlaki were well-known to government officials. (And need we be reminded of Awlaki’s own communications with Pentagon officials? Of the FBI and Justice Department’s decision to release him after 9/11?) The failure to investigate Hasan competently and prevent him from being in a position to attack American troops was a gargantuan blunder; the effort to cover it up by labeling a jihadist attack as “workplace violence” has been even more offensive.

The awarding of Purple Hearts to Hasan’s victims would carry an implied acknowledgement by the government of its abysmal performance. But it would have nothing to do with, and no meaningful effect on, Hasan’s murder trial. For the administration to claim otherwise is fraudulent.

(Thumbnail on PJM homepage assembled using a Shutterstock.com image.)