Although Michelle Malkin makes an important case [7] for 14 murder charges not 13 against Major Nidal Hasan, the Fort Hood jihadi murder suspect (shown in the accompanying UK Telegraph composite photo), there does appear to be at least one more charge that should be brought by his command against him.
Article 104 of the Uniform code of Military Justice defines the crime of Aiding the Enemy. This crime is committed by any person who, without proper authority, communicates or corresponds with the enemy, either directly or indirectly. Those who violate article 104 shall suffer death or such other punishment as a court-martial may direct. (Complete text below)
The Authorization for Use of Military Force passed [8] by the Congress on September 18, 2001 defines the authority to use military force against those nations, organizations, or persons determined to have planned, authorized, committed or aided the terrorist acts of September 11, 2001.
ABC News reports [9] Thursday evening that Hasan "used multiple e-mail addresses and screen names as he contacted several jihadist web sites around the world." ABC News also reports, "In addition to his contacts with suspected al Qaeda recruiter Anwar al Awlaki in Yemen, authorities said there is evidence he contacted other radical sites and individuals, including some in Europe."
Since al Qaeda has been determined to be an organization that planned, authorized, and committed the terrorist acts of September 11, 2001 and it has been reported that Hasan communicated with Anwar al Awlaki, a recruiter for al Qaeda, it would appear that all of there is evidence to prove all of the elements of the offense described in Article 104 of the UCMJ. Is there any reason that Major Nidal Hasan should not be charged with that offense?
904. ART. 104. AIDING THE ENEMYAny person who--(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or [protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;shall suffer death or such other punishment as a court-martial or military commission may direct.
The activities described by ABC News above may also be sufficient for charges of espionage in violation of UCMJ Article 106.:
906a. ART. 106a. ESPIONAGE(A) (1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, any thing described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court- martial may direct.
(2) An entity referred to in paragraph (1) is--(A) a foreign government;
(B) a faction or party or military force within a foreign country, whether recognized or unrecognized by the United States
(C) a representative, officer, agent, employee, subject, or citizen of such government, faction, party, or force.
(3) A thing refereed to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance or information relating to the national defense.
(b) (1) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless--
(A) the members of the court-martial unanimously find at least one of the aggravating factors set out in subsection (c); and
(B) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out under subsection (c).
(2) Findings under this subsection may be based on--
(A) evidence introduced on the issue of guilt or innocence;
(B) evidence introduced during the sentencing proceeding; or
(C) all such evidence.
(3) The accused shall be given broad latitude to present matters in extenuation and mitigation.
(c) A sentence of death may be adjudged by a court-martial for an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors:
(1) The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute.
(2) In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.
(3) In the commission of the offense, the accused knowingly created a grave risk of death to another person.
(4) Any other factor that may be prescribed by the President by regulations under section 836 of this title (Article 36).
