Will Hasan Case Prompt New Look At Objector Rules?

By Liz Halloran

Published November 13, 2009 8:05 AM

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J.E. McNeil remembers well the call she received about a year and a half ago from a doctor at Walter Reed Army Medical Center.

He was of the Muslim faith and had contacted McNeil, a lawyer and head of the Center on Conscience & War, seeking information about how he could establish conscientious objector status to get out of his remaining military obligation.

The doctor didn't leave his name — and the center, for confidentiality reasons, didn't ask.

But McNeil says she believes it could have been Maj. Nidal Hasan. It was around that time, after all, that Hasan, an Army-trained psychiatrist, reportedly told fellow physicians at Walter Reed that, to avoid "adverse events," the military should allow Muslims to leave as conscientious objectors to avoid fighting other Muslims in Iraq and Afghanistan.

What McNeil said that day, however, no doubt would have offered little encouragement to Hasan, who was charged Thursday with 13 counts of premeditated murder for allegedly gunning down a dozen fellow service members and a civilian last week at Fort Hood in Texas.

"An aversion to fighting a particular kind of war can't be grounds for conscientious objector status," McNeil says. "The military regulation says it has to be a sincerely held belief about participation in any war."

And the burden is on the soldier to prove the genesis and sincerity of those beliefs.

Hasan Wanted A Path Out

Family members have said that Hasan had been looking for an exit from the military because, as an increasingly devout Muslim, he didn't want to participate in fighting Muslims in Iraq and Afghanistan.

At the time of the shootings, he was weeks away from his first deployment, to Afghanistan.

The Army has said it has no record of Hasan, who joined the military in 1997, formally requesting conscientious objector status.

But Hasan's stated desire to have the military carve out a special conscientious objector exemption for Muslims, and his pursuit of one for himself, likely would have ended before it started.

Why? Because Hasan's singular focus was on an aversion to fighting Muslims, experts say, and not a proven, deeply held abhorrence to all war — no matter the circumstances or the enemy.

"You have to object to all of them, or none of them," says McNeil, whose organization advises and represents conscientious objectors in court.

She is among activists who for years — and with little success — have been advocating that Congress pass a law that would allow conscientious objector discharges for those who oppose a particular war because of "sincerely held moral, ethical or religious beliefs."

Current conscientious objector rules are contained in military regulations, and not codified in law.

The Trouble With Special Exemptions

But creating a special war opt-out for any particular religious group — other than historically pacifist groups like the Quakers and Mennonites — simply wouldn't work, argues Richard Kohn, a noted military historian and professor at the University of North Carolina at Chapel Hill.

"One thing you have to remember in all of this is the precedent that would be set. Would Jewish soldiers be able to get out? And what about Christian soldiers?" Kohn said.

"It's just not practicable, and it's difficult for us in the United States, where we try to separate government from religion in as many ways as we can," he says. "I do not see room for relieving Muslim soldiers of the obligation to do their duty, even if it requires them to participate in a war against Muslims."

And particularly during a time when the country relies on an all-volunteer Army and no forced conscription, Kohn and other military experts say. They view a war-by-war opt-out option as potentially disruptive — and an administrative nightmare.

James Feldman, a Philadelphia-area lawyer who, as part of his practice, represents military personnel seeking conscientious objector discharges, says that at the very least, the rules should be set in law, so that the military can't change its regulations at will.

"It would be great if we even had legislation to guarantee what we have now," Feldman says, "so the military can't withdraw the option."

In 1991, for example, the Pentagon suspended conscientious objector policy during the Gulf War. McNeil, citing a Government Accountability Office study, says 500 conscientious objectors went to jail after the suspension; some media accounts put the number at more than 2,500.

A report this week in The Washington Post said that since 2001, the Army has received about 50 conscientious objection applications annually from military personnel seeking not to bear arms or to leave the service because of religious, moral or ethical beliefs. About half were approved.

Dealing With Backlash Against Muslims

So as the military addresses backlash against Muslims serving in the armed forces, it is highly unlikely that a special conscientious objector status would be considered.

Kohn said that relieving someone like Hasan, who incurred his long obligation because of the education provided him by the Army, would contravene the military's longstanding conscientious objector tradition — particularly when there's an all-volunteer force.

"I find it hard to believe that when somebody is taking the King's shilling, and then when it finally comes to paying the price of that, you can be allowed to say, 'Oh, well, no,' " Kohn says.

But McNeil argues that if Hasan's concerns about fighting Muslims had allowed him a different path in the military — even short of a conscientious discharge — last week's events may have been avoided.

"If he had been told that they were going to put a mark on his record, and keep him from advancing but never deploy him, they would have had an extremely well-trained psychiatrist still working for them," she says, "and they wouldn't have a bunch of dead bodies in Fort Hood."

That assessment is certainly up for great debate, and of course, Hasan has not yet been tried for the crimes he's charged with committing. Just how much that assessment applies to the Fort Hood shootings may become clearer as more details emerge regarding Hasan's psychological state.

And that will likely happen over the next few weeks: President Obama on Thursday announced that he has directed an "immediate inventory" of all U.S. government intelligence collected on Hasan, and a review into how that intelligence was "handled, shared and acted upon" across military agencies and departments.

The president ordered that the results, as well as recommendations to improve procedures and practices, be provided by Nov. 30 to John Brennan, assistant to the president for Homeland Security and Terrorism.

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