Already facing intense scrutiny for its shifting narrative about the assault on the U.S. Consulate in Libya, the Pentagon now says it will not reclassify the Fort Hood shootings as a terrorist attack over concern about biasing the case against the gunman -- an argument that is getting a mixed review from legal specialists.
Late Friday, after 160 victims of the Fort Hood, Texas, shooting called on the Pentagon to label the attack terrorism instead of workplace violence as it has for the past three years, the Department of Defense said it would not reclassify the attack.
In rejecting the victims outcry, Defense Secretary Leon E. Panetta's spokesman cited concern that having the government weigh in could bias the case against Army Maj. Nidal Malik Hasan, 42, who is awaiting trial and faces the death penalty if convicted.
When asked how Mr. Panetta plans to respond to the victims, his spokesman took a day and a half to respond, eventually emailing a statement Friday night.
"The Department of Defense is committed to the integrity of the ongoing court martial proceedings of Major Nadal Hassan and for that reason will not further characterize, at this time, the incident that occurred at Fort Hood on November 5, 2009," Pentagon spokesman George Little said in the statement. "Major Hassan has been charged with 13 counts of premeditated murder, and 32 counts of attempted murder. As with all pending UCMJ matters, the accused is innocent until proven guilty."
But Mark Zaid, a national security law expert who sued Libya for the 1988 terrorism bombing of Pan Am Flight 103, said he doubted the government's hesitancy to designate the Fort Hood assault terrorism was really motivated by concern about prejudicing his trial.
"I find that a little difficult to believe," he said. "If that was the case, than how in the world would the Pentagon prosecute any terrorism case? There is a process in any case -- whether military or civilian -- to deal with any potential bias of a juror. It's a fundamental part of the judicial system to ensure that juries are impartial."
When presenting its case against Maj. Hasan, prosecutors will undoubtedly point to email chains between the defendant and al Qaeda leader Anwar al-Awlaki, Mr. Zaid noted.
"There's clearly going to be terrorist angles in the process," he said. "And calling it terror is not going to change the nature of the incident or the [jurors'] knowledge about it."
Jeffrey F. Addicott, the director for Center for Terrorism Law at St. Mary's University School of Law in San Antonio, accused the Pentagon of "playing word games" just days before Monday night's final debate between President Obama and Republican rival Mitt Romney in which foreign policy was the main focus.
Acknowledging Maj. Hasan's alleged shooting spree as a major terrorism attack on the homeland "destroys the administration's narrative that al Qaeda is winding down" and there is a diminishing threat of a terrorist attack occurring on U.S. soil, Mr. Addicott said.
"This war against al Qaeda is not localized to Afghanistan and Pakistan -- the problem here is that we have many people who are not members of al Qaeda but they are infected with the virus of radical Islam," he said. "To say that Hasan was not motivated by radical Islamic extremism is absurd."
But David Glazier, a professor at Loyola Law School in Los Angeles and a former fellow at the Center for National Security Law, strongly disagreed.
Labeling the shootings workplace violence instead of terrorism, he said, "makes perfect sense" because it's a simple cut-and-dried murder case without getting into the complexities of the military's law of war and whether it's appropriate to consider Maj. Hasan an unlawful combatant.
"The Department of Defense is being cautious but correct in proceeding with its case that this is an ordinary service member who is being prosecuted for a very serious crime," he said. "A military individual pulls out a gun and shoots. It's not necessary to get into motivation to prove that basic offense."
Reclassifying the shootings as a terrorist attack, could very well reset the whole case as the defense tries to obstruct and delay as much as possible, he added.
Last week a coalition of 160 victims and family members in the deadly rampage at the military post in Killeen, Texas, nearly three years ago called on the administration to reclassify the attack as terrorism, citing the suspect’s ties to al Qaeda and his radical Islamist beliefs.
The assault at Fort Hood left 13 dead and more than 30 wounded by gunshots, and officially designating the attack as terrorism would make service-member victims eligible for Purple Heart medals, and, the victims say, grant them access to medical care and benefits similar to what soldiers wounded in Iraq or Afghanistan would receive.
In the past month, many of the Fort Hood victims watched the Obama administration’s changing statements about the attacks on the U.S. Consulate in Benghazi and apparent reticence to label the attack in Libya terrorism until weeks later and drew parallels to the government’s reaction to the assault in Texas.
Nearly three years after the shootings, several government and separate independent investigations uncovered evidence that the FBI knew Maj. Hasan was emailing with al-Awlaki before the shootings and did nothing to intervene.
According to authorities, Maj. Hasan also followed al-Awlaki’s advice to scream "Allah akbar" ("God is great") to invoke fear before starting to shoot. Al-Awlaki was killed in 2011 by a drone airstrike in Yemen.