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Why military judge has hands full with Nidal Hasan court-martial

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Osborn “has got to figure out where to draw the line … [if] she wants to prevent this from turning into a complete circus without depriving a defendant who is accused of a serious crime of his right to defend himself,” adds Aitan Goelman, a former US Department of Justice terrorism prosecutor. “There doesn’t seem much question about whether this guy opened fire on a bunch of soldiers … so the legal battle that’s going to be fought is going to be atypical. Despite the whole idea that his defense is that he came to the defense of others, [it’ll create] an opportunity for him to make his political or theological case.”

Osborn’s task may mirror in part that of US District Judge Leonie Brinkema, who shepherded the civilian trial of Zacarias Moussaoui, the so-called 20th 9/11 hijacker. At his 2006 trial, Mr. Moussaoui berated the court, cited Islamic law, and even threatened the jury while cursing his own defense team. Many doubted that the US could fairly try a terrorism suspect, while others said Judge Brinkema went too far in allowing Moussaoui’s rants. Moussaoui was sentenced to life in prison.

Before allowing Hasan to defend himself, Osborn spent more than an hour Monday grilling him about his request, suggesting several times that he would be better off if his appointed military lawyer were to handle the courtroom. The judge retains the right to hand his defense back to the appointed military lawyer if Hasan proves unable to act as his own lawyer or unwilling to stick to the facts of the case.

Meanwhile, appeals cases are already being drafted, legal experts say, given Monday’s decision to allow Hasan to defend himself and the earlier fight about whether Hasan should be able to wear a beard or be forced to shave it, given that he still falls under the purview of Army regulations that forbid beards for officers.

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