Should the Fort Hood Attack be Classified as an Act of Terrorism?

The question of whether the Fort Hood attack carried out by Nidal Hasan should be classified as an act of terrorism is in the news. As ABC News notes, survivors of the attack have “released a new video … calling on the government to classify the November 2009 shooting as a terrorist attack rather than ‘workplace violence,’ a change that would make them eligible for specific combat-related benefits.”

The coverage of this issue has been a bit confused, because there are actually three different questions embedded within it, and media coverage has conflated them. The three questions are: 1) should the attack be classified as “an international terrorist attack” for the purposes of satisfying Purple Heart criteria?, 2) should terrorism-related charges have been brought against Hasan?, and 3) was the Pentagon’s Fort Hood review too narrowly focused on the incident as “workplace violence” rather than ideologically-motivated terrorism?

Should the attack be classified as “an international terrorist attack” for the purposes of satisfying Purple Heart criteria? The bottom line is that it doesn’t qualify as one under existing criteria. As ABC News explains, a Purple Heart may be awarded to service members who are killed or wounded “in action against an enemy of the United States; as the result of an act of any hostile foreign force; or as the result of an international terrorist attack against the United States, provided the Secretary of the military department concerned recognizes the attack as an international terrorist attack” (emphasis added). An international terrorist attack, in turn, is defined as “premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents” when the act involves “citizens or the territory of more than one country.”

The Fort Hood attack really did not involve the citizens or territory of more than one country. Those who want it classified as an international terrorist attack will argue that Anwar al Awlaki’s involvement makes the attack international. Leaving aside the objection that Awlaki was also American (he was, in fact, a dual U.S.-Yemeni citizen), the problem with this argument is that Awlaki did not direct the Fort Hood attack. Indeed, the correspondence between Hasan and Awlaki could be classified as a case of unrequited love on Hasan’s part, as Awlaki barely gave Hasan the time of day.

One may argue that the criteria should be changed to allow the award of Purple Hearts to Hasan’s victims. I am not going to evaluate that argument here — but regardless of whether it is right to change the criteria to allow Hasan’s victims to be awarded Purple Hearts, current criteria do not support the award without such a change.

Should terrorism-related charges have been brought against Hasan? As Pentagon spokesman George Little noted in an email to the Washington Times, Hasan was charged with 13 counts of premeditated murder and 32 counts of attempted murder. I should note that in my initial version of this post, since edited, I erroneously sympathized with the idea that terrorism charges should have been brought in the first instance, because I was looking at applicable federal law. However, as Louis Klarevas flagged on Twitter, the Uniform Code of Military Justice (UCMJ) does not contain a separate charge for terrorism offenses. Indeed, in pre-trial coverage, Time explained that UCMJ would make for a simpler trial for this exact reason:

While the debate swirls about Hasan’s motives, connections and communications, opting for a military trial avoids the legal mire of treason or terrorism charges. Military prosecutors will have a Dragnet view of the case — “just the facts” as Jack Webb, star of the television cop classic was fond of saying. Why he did it is not essential, [Scott] Silliman says, although the defense may seek to cloud the picture with digressions into motivation. Prosecutors will focus on what the accused intended to do and how he allegedly did it: when he bought the gun, what he said to neighbors and how he acted on the morning of the crime.

In August, I did field research in Little Rock, Arkansas, on the Carlos Bledsoe case (Bledsoe is the man who carried out a shooting in 2009 at Little Rock’s military recruitment station, killing one soldier and injuring another). I spoke to the prosecutor in that case, Larry Jegley, about why the fact that Bledsoe’s motivations made the shooting an act of terrorism was treated as incidental. His response illustrated why prosecutors may opt for a simpler case in chief in instances such as this:

We have anywhere from 40 to 100 killings a year in my jurisdiction, and we try a lot of homicides. Of course, this thing got a lot more attention because the victims were in uniform, and were at an installation of the U.S. military. Our attitude about it early on was that we’ll let our cops do their thing, because unfortunately they’ve got a lot of experience. We’ll figure the rest of it out when we get there. Whether it would be tried as terrorism didn’t really enter into our mind. If you read the statutes, the only unusual factor at work in this case was the fact that one element of the capital murder statute involves someone in the military: Arkansas Criminal Code § 5-10-101(a)(3) applies to premeditated and deliberated killing for the purpose of causing the death of military personnel. That is what made this capital murder.

In other words, to Jegley it was simpler to treat the Bledsoe case as one of the too-frequent murders his office has to deal with every year: he had the evidence that he needed to prosecute the case as a capital murder, and playing up the ideological dimension would, in his view, only have complicated matters. Jegley and his team looked at Bledsoe’s motivations (rooted in his jihadist beliefs) to see if anything jumped out at them as an aggravating factor during the sentencing phase, but they found nothing.

Similarly, UCMJ does not contain a terrorism charge. This is not to say that Hasan’s attack couldn’t garner terrorism-related charges under federal law; but charging Hasan with a terrorism offense under UCMJ is a non-starter because UCMJ does not include terrorism charges.

Was the Pentagon’s Fort Hood review too narrowly focused on the incident as “workplace violence” rather than ideologically-motivated terrorism? In this area, I agree with the criticisms of the Pentagon review. Hasan’s attack was not a simple case of workplace violence, and it is impossible to understand the incident without taking a hard look at Hasan’s motivations, and the ideology that drove the attack. In this regard, the U.S. Senate Committee on Homeland Security and Governmental Affairs report, A Ticking Time Bomb: Counterterrorism Lessons from the U.S. Government’s Failure toPrevent the Fort Hood Attack, was far more rigorous and thorough.