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2:31 pm
Tue September 3, 2013

The Rare Case Of The Military Execution

Originally published on Tue September 3, 2013 5:13 pm

If Army Maj. Nidal Hasan is eventually executed, he will be the first person put to death by the U.S. military in more than 50 years.

Hasan, who was sentenced to death last week after being convicted of killing 13 people at Fort Hood in 2009, also faces what could be years of appeals, even though he did not really defend himself at his trial.

“He was basically a spectator, and I think wanted it over as soon as possible,” Eugene Fidell, an expert in military justice, told Here & Now. “He’s a most unusual litigant.”

The good news is that our military death penalty arrangements are somewhat better than they were when Private Bennett was executed.
–Eugene Fidell

Hasan is now being held on death row at Fort Leavenworth in Kansas, along with five other soldiers who have been sentenced to death.

Army Private John Bennett was the last person put to death by the U.S. military. He was hanged in 1961 after being convicted of raping and attempting to kill an 11-year-old girl in Austria.

Fidell said that Private Bennett’s case was problematic because it was inflected by racial overtones.

“The Kennedy administration was particularly concerned that there had been a series of executions of African-American soldiers,” Fidell said.

Despite the Kennedy administration’s concerns, President Kennedy did not intercede on Bennett’s behalf and commute Private Bennett’s sentence.

However, since Private Bennett’s execution, the guidance for putting a soldier on death row has changed.

“The good news is that our military death penalty arrangements are somewhat better than they were when Private Bennett was executed in 1961,” Fidell said. “Specifically we now have a regulation in the manual for courts-martial that at least begins to guide the exercise of discretion so that jurors — or as they are called, members — of the court martial aren’t completely at sea in terms of deciding who should be executed and who should not.”

Fidell says the issue with death penalty cases prior to regulation was that there was “unfettered discretion in sentencing.”

“Private Bennett’s case is still very instructive because it shows how the system operates when there are no landmarks to guide the exercise of discretion,” he said.

Additionally, there might be major institutional changes on the horizon regarding who gets to decide whether to charge a service member with a serious crime.

Fidell cites Senator Kirsten Gillibrand’s bill which would “get rid of this anachronistic system where commanders — not lawyers — make the decision to prosecute people for serious offences,” Fidell said. “I’m not talking about minor disciplinary things, I’m talking about murder, rape, arson and so forth.”

The Hasan case was one of three high-profile military trials this summer.

Staff Sgt. Robert Bales was sentenced to life in prison without the chance of parole for massacring 16 Afghan civilians. Army Pfc. Bradley Manning (who is now asking to be called Chelsea Manning) was sentenced to 35 years in prison for giving a trove of military and diplomatic secrets to the website WikiLeaks.

“It’s beyond anything in my experience,” Fidell said of the trials this summer.

Guest

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Transcript

ROBIN YOUNG, HOST:

Well, last week's sentencing of Fort Hood shooter Major Nidal Hasan got us wondering. The military does have an automatic appeal, but if Hasan is eventually executed for killing 13, he will be the first person put to death by the U.S. military in more than 50 years. So was the last back in 1961? And how did that execution inform the system that plans to execute Hasan?

We want to spend a few minutes here today. Eugene Fidell teaches military justice at the Yale Law School and joins us from the Yale studios. Eugene, first of all, who participates in this military appeal for Hasan?

EUGENE FIDELL: Dr. Hasan will be entitled to free lawyers, once again, for the appellate stages of his case. He may also bring his own lawyer, but he doesn't seem to have much interest in being represented by anyone. In any event, the Army has lawyers at the Defense Appellate Division, and I'm sure those lawyers will be assigned to represent him frankly whether he likes it or not.

YOUNG: Well, and we remember that he defended himself at his trial in Texas but offered little defense, didn't testify, admitted guilt. His court-appointed legal team objected to no avail. They said he's just doing what he wants to do, which is becoming a martyr and getting the death penalty. Will this team bring that argument into this process, do you think?

FIDELL: They could. I actually was not impressed by that argument. You know, it is what it is. He's a most unusual litigant. But the one thing that we can count on is there'll be something here that will surprise us. I for example was surprised that he didn't make a speech in the courtroom. I thought that was the one thing that I was certain of, and I was fooled by that. So I'm expecting that there'll be further developments that will continue to baffle us in this case.

YOUNG: Well, what else - before we move on to some history, what else were you surprised about in this case? Because as you've just indicated, he was ruled sane. He was ruled able to take the stand. And so it seems that it would follow that if he then wants to martyr himself, he's allowed to do it. But what did surprise you in the trial?

FIDELL: That he did absolutely nothing.

YOUNG: Didn't grandstand, didn't...

FIDELL: He didn't grandstand. He was basically a spectator and I think wanted it over as soon as possible. The sooner it was over, the sooner the case will get into the appellate review process. The sooner that'll be completed, the sooner he'll be executed.

YOUNG: And by the way, how long might the appeals, the appellate process, take?

FIDELL: The appellate process could take several years, I think. After the military appellate process has concluded, a litigant in the military justice system has a right to go to federal district court seeking a writ of habeas corpus to challenge the conviction and sentence on constitutional ground. I don't see that happening here because Dr. Hasan has given no indication whatever that he's interested in resisting the system.

YOUNG: Well, now take us back. The last person executed by the U.S. military, Army Private John Bennett. He was hanged at Fort Leavenworth in Kansas, 1961, after being convicted of raping and attempting to kill an 11-year-old Austrian girl. He left her in a field after the rape, and it was decided that was attempted murder.

It was interesting to read that horrendous as the rape of a child is, horrendous, interesting to read that he received the death penalty when we just saw Robert Bales convicted of killing 16 civilians in Afghanistan in 2012, including children, but only sentenced to life in prison without parole. He did not receive the death sentence.

So we'll compare and contrast more, but first tell us more about the Bennett case.

FIDELL: The Bennett case is an interesting case. I've read the file, which is available at the John F. Kennedy Presidential Library in Boston. It was a case charged with racial overtones. Bennett was African-American. The Kennedy administration was particularly concerned that there had been a series of executions of African-American soldiers.

The president had the Justice Department, then head by his brother Bob Kennedy, do an evaluation of all federal executions since World War II. The administration gave a lot of thought to it, in fact, I should say administrations, because Bennett's sentence was actually affirmed, and he was ordered executed by President Eisenhower, but the Army didn't get around until actually executing him until after the new administration took effect.

And then a request was made by Private Bennett that President Kennedy disapprove the execution. Kennedy took no action, and Bennett was ultimately hanged at Fort Leavenworth.

YOUNG: And we should say that a president is the only person who signs the death warrant for a service member. He is the last gate. And as you say, in this case even though Kennedy's administration, after their research, was disturbed by what they found, they decided not to intervene and not sign the death warrant because, as you say, they were concerned about how the public might react.

FIDELL: Yes, it's very interesting reading the documents because the records include a memorandum that says the commandant at the disciplinary barracks read a message from the White House to Private Bennett, informing Private Bennett that the president had decided to take no action to interfere with the execution. It was quite stirring to me when I saw that.

YOUNG: You went back, and even though there was all this going on behind the scenes in the Kennedy administration, there was little press attention, although you did find articles in, I think, the Los Angeles Times that pointed out that during the six years between Bennett's trial and his execution, eight other black soldiers were executed just in that short time. But the six white prisoners on death row all lived.

FIDELL: It was a serious issue. I think this is a matter that is going to continue to be of concern. People do take a look who's currently on death row. If there are patterns, that's going to be disturbing. The good news is that our military death penalty arrangements are somewhat better than they were when Private Bennett was executed in 1961.

Specifically we now have a regulation in the manual for courts martial that at least begins to guide the exercise of discretion so that jurors, or as they are called members of the court martial, aren't completely at sea in terms of deciding who should be executed and who should not.

YOUNG: That's Eugene Fidell, who teaches military justice at the Yale Law School. We're going to take a break. When we come back, more on what this summer's trials say about the military justice system.

JEREMY HOBSON, HOST:

Meanwhile some other stories we're following. Egyptian army attack helicopters fired missiles at suspected militants in the Sinai Desert today. The military says at least eight were killed and many more wounded. And Dalton, Georgia, is known as the carpet capital of the world, but it has lost thousands of jobs over the past decade. Now a flooring company is investing $450 million in the area as part of a resurgence in manufacturing in Georgia.

Details coming up later on ALL THINGS CONSIDERED. We'll be back in a minute with more of Robin's conversation, HERE AND NOW.

(SOUNDBITE OF MUSIC)

YOUNG: It's HERE AND NOW, and we are spending some time now looking at military trials. Major Nidal Hasan is now being held on death row at Fort Leavenworth in Kansas, joining five other men awaiting execution there. He was sentenced to death last week after being convicted of killing 13 people at Fort Hood in 2009.

As we heard just before the break, there hasn't been a U.S. military execution since 1961, when Army Private John Bennett, an African-American, was hanged after being convicted of raping and attempting to kill an 11-year-old girl in Austria. Some white soldiers on death row at the same time or just before had their sentences commuted, even though they killed several children.

We're speaking with Eugene Fidell, who teaches military justice at the Yale Law School. So, Eugene, Major Hasan, sentenced to death for the Fort Hood killings. But in another trial this summer, Staff Sergeant Robert Bales was sentenced to life without parole for killing 16 civilians, some of them children, in Afghanistan in 2012.

Both of these men committed horrible crimes, but received different sentences: Hasan the death penalty, Bales life in prison. Is that kind of difference in sentencing something that gives you pause?

FIDELL: It definitely does. The disparities between the treatment of these cases are hard to reconcile. Certainly, Dr. Hasan committed really atrocious offenses, but the same thing is true of Staff Sergeant Bales. The only thing I can say is that Staff Sergeant Bales' case may have presented substantially greater problems of proof for the government.

Remember, those offenses took place outside the country. Many of the witnesses were dead. Other witnesses may not have wanted to participate in the trial, angry at the way things unfolded in general. There are language issues. So there's probably a reason why the government was willing to make a deal under which Staff Sergeant Bales avoided a capital trial. I'd like to know more about what the dynamic was there, and I think it would benefit people who are trying to sort these cases out and see if it's possible to make sense of them.

And it's no surprise that people in the United States are wondering, because we've sort of had the World Series of military justice this summer between Dr. Hasan's case, Staff Sergeant Bales' case and Private Manning's case, not to mention the sort of military justice proceedings that are still sort of rocking along at Guantanamo.

YOUNG: Well, just a thought, one difference - one major difference between the Hasan and Bales case is that Bales expressed remorse and sympathy. Hasan did not. That's just one distinction there.

FIDELL: Well, that is a distinction, but I have to say that although it's possible to have some sense of what was driving Dr. Hasan, it's impossible at this point to understand what was driving Staff Sergeant Bales. I am completely baffled by it. I don't think we've had an explanation. He hasn't furnished an explanation. It may be one of those mysteries that is never resolved.

YOUNG: Well, his defense team talked about four deployments being the pressure on him at the time. But putting that aside, back to the Bennett case. It seems as if - I mean, maybe there's no connection, but it does seem as if this case changed the military. As you pointed out, so many executions right before his, none since.

And you say, for instance, he may have had mental health problems that would have spared him the death penalty in today's justice system. So there has been some recognition and perhaps change because of the Bennett case?

FIDELL: I actually don't think the Bennett case was the turning point. I think the turning point probably came when the Supreme Court invalidated all the death penalty statutes in state codes, because they provided for unfettered discretion in sentencing. That same principle led to the invalidation of the capital punishment provision in the Uniform Code of Military Justice, and that had the effect of emptying death row at Fort Leavenworth.

Death row was thereafter repopulated after a change was made to the Manual for Courts-Martial that does begin to guide the exercise of jury discretion in military capital cases. But I think that's the turning point, rather than Private Bennett's case.

Private Bennett's case is still very instructive, though, because I think it shows how the system operates when there are no landmarks to guide the exercise of discretion. Incidentally, I might add that, obviously, with a 50-year period of no executions, our military justice system is certainly not bloodthirsty when it comes to actually executing people.

The Marine Corps has an even longer record without executions. I'm told that the last Marine Corps execution was in 1817. So, overall, this is not a system that goes out of its way to execute soldiers.

YOUNG: Yeah. Here's another note that you make. During World War II, 70 soldiers were executed in Europe. Of those, 55 were black. Eugene Fidell, President Obama now has to sign off on the death penalty for Major Hasan. As Kennedy did not interfere with Bennett's years ago, do you expect that Obama won't interfere here?

FIDELL: I'm going to disagree with your premise. I don't believe this case will reach the Oval Office during President Obama's term. I think this case, like other cases before it, will experience rather slow processing, and probably this will be in the inbox for the president's successor on Inauguration Day.

YOUNG: So this has been quiet a summer for someone who teaches military justice.

FIDELL: It's been beyond anything in my experience. It's been a very interesting - oh, but there's one more thing. Remember that while we're talking about all these cases, there's a whole other discourse that's going on on Capitol Hill about whether the system should be changed in terms of who gets to make the charging decision.

YOUNG: Are you talking about sexual assaults in the military?

FIDELL: It goes beyond that. The discourse has gone beyond that. Senator Gillibrand's bill doesn't only cover sexual assault. It covers all offenses. And it basically, for serious criminal-type offenses, would require that somebody other than a commander, non-lawyer commander, make the decision as to who should be prosecuted for what.

And that is a major institutional shift. It's highly controversial. The Pentagon - don't you remember that video, the visual with all the judge advocates general and the joint chiefs of staff in a big row before the Senate Armed Services Committee, and Senator Levin and Senator Graham saying don't you agree that commanders have to have all these powers?

And then you have Senator Gillibrand fighting back, a number of other senators. She's got nearly 50 senators, at last count, who are favoring structural change to get rid of this anachronistic system where commanders, not lawyers, make the decision to prosecute people for serious offenses.

YOUNG: So this is...

FIDELL: I'm not talking about like minor disciplinary things. I'm talking about murder, rape, arson and so forth.

YOUNG: Eugene Fidell teaches military justice at the Yale Law School, taking a look at all of the military trials, really, this past summer. Eugene, thanks so much.

FIDELL: It's my pleasure.

HOBSON: And Robin, a lot of people already weighing in on our Facebook page about this. Katherine Wilson Cole(ph) writes: I think it makes us look highly hypocritical to the rest of the world. A Muslim will be killed for shooting American soldiers, but an American soldier will be spared after slaughtering women and children.

Holly Babson(ph) says I think both deserve the same fate. The civilians killed were our allies. We have a higher responsibility to keep them safe from our soldiers. And one more here from Jay Reinline(ph): One turned on his own comrades, he writes. The other had a mental breakdown.

YOUNG: Well Donna Love(ph) just tweeted me that Staff Sergeant Bales mounted a defense. Dr. Hasan mounted no defense. Did that have an impact? Join in at Facebook.com/hereandnowradio, online at hereandnow.org. We'd love to hear from you. Join the conversation. Latest news is next, HERE AND NOW. Transcript provided by NPR, Copyright NPR.

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