- The Washington Times - Tuesday, November 17, 2009

On Saturday, President Obama urged Congress to hold off investigating the Fort Hood massacre in order to let law enforcement and military authorities do their work. Mr. Obama said the ongoing investigation “will look at the motives of the alleged gunman, including his views and contacts.” But if Army Maj. Nidal Malik Hasan saw himself as a jihadist warrior, we may never hear about it at his trial. The defense, judge and even prosecution may have an interest in keeping the shooter’s radical worldview under wraps. Maj. Hasan will be on trial, but jihadism will not.

Maj. Hasan has a clear interest in not raising the issue of his motives. There is no “jihad defense” in American law. His team will instead seek to demonstrate he lacked the mental capacity to understand his actions, that he was suffering a stress disorder transferred from patients at Walter Reed, or that he could not cope with his pending deployment to fight in what he saw as an unjust war against his co-religionists. They will make the trial about “Bush’s Crusade” if they can.

Maj. Hasan’s motives may fall under rule 403 of the Military Commission Rules of Evidence, which states that a military judge “shall exclude any evidence the probative value of which is substantially outweighed … by the danger of unfair prejudice [or] confusion of the issues.”

A judge could rule that Maj. Hasan’s jihadist views are too inflammatory and prejudicial for a jury to hear, that they raise too many strong emotions to be considered. Evidence developed by investigators proving Maj. Hasan’s radical affiliations and activities would be suppressed. Witnesses would be cautioned not to blurt out anything that might have a bearing on motive - such as Maj. Hasan shouting the jihadist battle cry “Allahu Akbar!” before he opened fire.

The government might also find it expedient not to bring jihadism into the case. “The prosecution will want to have the clearest possible case with the fewest possible issues,” professor Eugene R. Fidell of Yale Law School told The Washington Times yesterday.

He said that addressing Maj. Hasan’s motives “could raise other issues they may not want.” As matters stand, the prosecution is in an excellent position. Maj. Hasan is charged with 13 counts of capital murder, the shootings took place in broad daylight in front of dozens of witnesses, and Maj. Hasan was apprehended wounded on the scene in possession of the murder weapons. Mr. Fidell said that proving that Maj. Hasan was not only a murderer but a jihadist would be “making the rubble bounce.”

This underscores the problem in charging Maj. Hasan with simple murder instead of bringing him up on terrorism charges. The government effectively has established a framework in which the question of Maj. Hasan’s radicalism is irrelevant to the case and could be excluded as prejudicial. It will be as though no terror attack took place.

Because the full story may not come out at Maj. Hasan’s trial, it is imperative for Congress to disregard Mr. Obama’s request and conduct a thorough and wide-ranging investigation into the cause and consequences of the Fort Hood massacre.

Congress should establish how Maj. Hasan slipped through the cracks of the counterintelligence system, what foreign and domestic contacts he had with other jihadists, what special boundaries have been imposed on authorities investigating religious radicals, and what other investigations have been dropped for fear of crossing the line.

Maj. Hasan’s motivations may not be a factor in proving his guilt, but they are central to understanding the reason for the attack and to preventing future such acts of terror. Legal technicalities may keep “Allahu Akbar!” out of the courtroom but they will not prevent jihadists from planning future terror attacks.