Terrorist calling on Supreme Court to reverse UCMJ death sentence

A US Army Sergeant who killed two soldiers and wounded fourteen during the opening days of the Iraq War is looking to the Supreme Court to reverse his death sentence after sitting on death row for over eleven years.

According to the News & Observer, Sergeant Hasan K. Akbar -born Mark Fidel Kools of California is imploring the Supreme Court to reverse his death sentence after he murdered two officers and wounded 14, using hand grenades and a rifle in a premeditated attack that took place at a Kuwaiti staging area on February 4th, 2003.

Akbar also stabbed a Military Police officer with a smuggled pair of scissors during his trial, though the incident was not allowed to be used as evidence. Found guilty on two counts of premeditated murder in April of 2005, following seven hours of deliberation.

Utilizing a case concerning fellow death row inmate Dwight J. Loving, Akbar hopes to convince the Supreme Court to revisit whether or not capital punishment is constitutional.

“Not only is (Akbar) offering a substantial constitutional challenge to a death sentence, but his challenge, if affirmed, would invalidate the entire scheme by which the military justice system currently imposes capital punishment,” attorneys for the National Institute of Military Justice wrote in a brief filed in support of Akbar.

Loving crossed paths with the Supreme Court in 1996, challenging his death sentence with a similar argument. However, the Supreme Court upheld Loving’s death sentence with a 9-0 decision, reasoning that the President could set a series of factors and criteria to justify a death sentence.

While Loving’s case was ruled against him, some think that Akbar’s case could be revisited.

“If the court was ever going to pay any attention to the military justice system, this would seem to be a compelling case in which to do so,” said Stephen Vladeck of the American University’s Washington College of Law who co-wrote a brief supporting Akbar.

Since Loving’s sentence challenge was rejected in the 1990s, several laws on the subject have changed. In 2000, the Supreme Court ruled that facts that enhance a punishment must be submitted to a jury and proved beyond reasonable doubt. In 2002, a related decision made this standard apply to factors used in imposing the death penalty.

Due to these factors, defense attorneys argue that Congress must first determine what elements constitute a military capital offense, as it is the governing body’s responsibility for writing law that the president executes.

Several heavy-hitting organizations are backing the hearing of Akbar’s case, including the National Association of Criminal Defense Lawyers, the National Institute of Military Justice, and the Air Force and Navy-Marine Corps appellate defense divisions- who all filed briefs on his behalf.

The US Government’s response is due next Wednesday, which will depend in part on a military court’s 3-2 decision rejecting Akbar’s challenge.

Judge Kevin A. Ohlson wrote that “We will continue to adhere to the holding in Loving unless the Supreme Court decides at some point in the future that there is a basis to overrule that precedent.”

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  • Andy Wolf

    Andy Wolf is an Appalachian native who spent much of his youth and young adulthood overseas in search of combat, riches, and adventure- accruing decades of experience in military, corporate, first responder, journalistic and advisory roles. He resides in North Carolina's Blue Ridge Mountains with his K9 companion, Kiki.

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