Battles brew over Fort Hood shooting suspect’s past

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Maj. Nidal Malik Hasan is paralyzed from the chest down. He waits in a small Texas county jail and has not been seen publicly in the six months since he was shot and charged with killing 13 people and wounding nearly three dozen others at the nearby Ft. Hood Army post.

He is about to surface again. Early next month military attorneys will meet for a preliminary hearing on whether the 40-year-old Muslim who became an Army psychiatrist should be court-martialed and perhaps sentenced to die for the Nov. 5 assault.

But even before the gavel comes down, two legal battles are underway to try to force the Army and the Department of Justice to turn over documents dealing with Hasan’s past, particularly his personnel files, his mental health records and other documents that might suggest the government should have known he was a dangerously troubled soldier.

The Senate Homeland Security and Governmental Affairs Committee has taken the unusual step of issuing subpoenas demanding the records as part of its investigation into the shooting spree. What they want to know, said committee Chairman Joe Lieberman (I-Conn.), is “why was he not stopped before he took 13 American lives, and how can we prevent such a tragedy from happening again?”

At the same time, Hasan’s defense attorney, John P. Galligan, a retired Army colonel from Belton, Texas, said he has been deprived of the records despite repeated requests. Without the material, he said, it will be very difficult to defend Hasan at the hearing.

Another key issue is whether FBI and Pentagon investigators failed to follow through on information from U.S. intelligence sources about Hasan’s reported contacts with Anwar Awlaki, a U.S.-born, Yemen-based Islamic cleric with suspected ties to Al Qaeda. That kind of relationship could help Galligan prove that the Army and the FBI dropped the ball in not warning that Hasan was a danger and mentally unfit to continue serving in the military. It would also help Galligan mount an insanity defense.

“They want to sit around and portray Hasan as a self-radicalized jihadist because of his contacts with Awlaki, and yet I can’t get this information,” Galligan said. “Does it make sense to go to the hearing without the FBI reports or evidence about my client’s mental state?”

According to witnesses, Hasan opened fire after shouting, “Allahu akbar!” — Arabic for “God is great” — inside the Ft. Hood base’s Soldier Readiness Center. Outside, he encountered gunfire by base police and fell to the ground wounded.

He was about to deploy to Afghanistan. Instead, he was charged with 13 counts of premeditated murder and 32 counts of premeditated attempted murder.

Top attorneys for the Justice Department and the Pentagon wrote the Senate committee last month that they had already turned over nearly 1,000 pages of documents and held briefings with Senate staff members to cooperate with the panel’s investigation. To go further, they said, especially in identifying government officials who could be called to testify in the court proceedings, would jeopardize the criminal case.

“We believe we have moved this dialogue significantly in your direction,” attorneys William J. Lynn III and Gary G. Grindler wrote to the committee. “We do not believe we can go beyond this point without incurring significant risk to the successful prosecution of Major Hasan.”

The committee, in issuing the subpoenas, noted that if Awlaki is considered dangerous enough that the Obama administration has reportedly authorized the CIA to capture or kill him, then everyone he has been in contact with should have been thoroughly vetted — all the more so if one was an Army major.

“I can’t wait to join you” in the afterlife, Hasan once reportedly e-mailed Awlaki. After the shootings, Awlaki reportedly praised Hasan as a “hero” and a “man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against its own people.”

Two outside experts offered differing opinions on the standoff over government records.

Eugene R. Fidell, who teaches military law at Yale University, saw no harm in giving the material to the committee, as long as it is not publicly released. But he also said the material could be become public record during the court-martial anyway.

“Why not release it?” he said. “I’m not convinced that Congress needs to hibernate while this case goes forward. This is going to be one of the most potentially watched court-martials in American history.”

But Andrew C. McCarthy, who led the federal prosecution of the 1993 World Trade Center bombing case, said in an interview that it would cause problems if “Congress gets access to your eyewitnesses, has hearings about your evidence, and draws uninformed conclusions.”

In his new book, “The Grand Jihad,” McCarthy also questions the decision by FBI and Pentagon investigators to drop their investigation of the Hasan-Awlaki relationship.

“So they didn’t remove him,” McCarthy writes. “They promoted him to major in May 2009. Five months later, he slaughtered 13 of our best and bravest.”