Where are we trying to get to?

Author:Chipman, Dana K.
Position:2017 Stanford Law Review Symposium; Raising the Bar: Lawyers and Leadership

At the beginning of every Pentagon meeting involving the Army's senior staff, General George Casey, then-Chief of Staff of the Army, asked: "Where are we trying to get to?" That question never lost relevance. For the leader of any organization, identifying the desired end state constitutes the critical task. For example, CEOs develop and direct the execution of corporate strategy to achieve growth or revenue goals. Similarly, senior military leaders marshal resources to achieve strategic aims--the maintenance of an alliance, the return to governance based on the rule of law, or the transition from combat operations to stability operations and then to peace.

November 2009: Tragedy at Fort Hood

General Casey's simple question should have fundamentally guided my actions. If I could get a second chance, maybe it would, but it took time for his focus to sink in. In November 2009, one short month into my four-year tenure as the Judge Advocate General (TJAG), U.S. Army, (1) Major Nidal Hasan opened fire at a deployment center located on the Fort Hood military installation, killing thirteen soldiers and wounding many more. As events unfolded that day, reports initially said that the alleged shooter had died at the scene. Whether appropriate or not, I felt relieved, knowing the monumental tasks ahead in a criminal prosecution of this magnitude. That feeling dissipated quickly when initial reports proved wrong. (2) In fact, a criminal prosecution would ensue.

Under what system would this case proceed? One option would be a criminal trial in U.S. district court. Another would be a court-martial conducted under the authority of the Uniform Code of Military Justice (UCMJ), in which Army judge advocates would exercise key roles, including staff judge advocate (a quasi-district attorney), prosecutor, defense attorney, and judge. In cases arising on military installations like Fort Hood, federal jurisdiction exists for criminal offenses. Typically, a negotiation occurs between the staff judge advocate of the installation and the affected U.S. Attorney's Office. (3) Topics addressed might include: (1) What offenses best capture the gravamen of Hasan's conduct? Terrorism-related charges? Felony-murder? (2) Where did the events occur? (3) Who were the victims? (4) What community has greater equities in a prosecution: Killeen, Texas, the nearest city, or the Fort Hood installation?

Jurisdiction negotiations did not endure long, for it rapidly became clear in the aftermath of the mass shooting that Hasan would be tried at a military court-martial. General Casey's guidance from the outset was to do all we could to enable Fort Hood's recovery from this horrific event. That recovery entailed operations on several lines of effort, each important for healing a community that had borne a great deal of loss in near-constant deployments of soldiers and installation units since the tragic attacks of September 11, 2001. A necessary aspect of my role as TJAG was to ensure a legally sound prosecution under the UCMJ, delivering accountability under our system that both seeks justice and enforces good order and discipline. This case was the Army's to try, though we obtained superb support from the Federal Bureau of Investigation in developing the evidence to be used at trial.

Keeping the case on track became the fundamental challenge. Derailments presented in ways both expected and unanticipated. First, public statements by senior government officials, from the President down, afforded Hasan the ability to claim that he could not receive a fair trial under the UCMJ anywhere in the country. (4) Second, Congress's interest in exercising its constitutional oversight authority threatened to overtake the criminal prosecution already underway, particularly as the prosecution dragged on for nearly four years. (5) Third, we faced criticism concerning the charges levied against Hasan. For example, some observers were troubled that this was not a terrorism prosecution. (6) For me, that simply did not matter. We had a U.S. Army soldier in uniform accused of killing other soldiers in U.S. Army uniforms on a military installation--murder was a sufficient charge to pursue. Other voices questioned the failure to charge Hasan with the murder of a fetus of unknown gestation (7) carried by one of the victims; proving that offense would have further complicated an already challenging prosecution. Finally, we had to respond to the...

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