Published November 19, 2010
EXCLUSIVE: A key intelligence report that could aid accused Fort Hood shooter Maj. Nidal Hasan's defense is being withheld by the Obama administration, according to a letter obtained by Fox News as part of its ongoing investigation of a radical American cleric.
Intelligence officials do not deny that the report contains information about the cleric, Anwar Al-Awlaki, who is the first American on the CIA’s kill or capture list.
The letter, dated Oct. 19, 2010, was sent by the general counsel for the national intelligence director – the nation’s top intelligence official - to the chief Army prosecutor, Col. Michael Mulligan. It states that the intelligence review requested by President Obama immediately after the shooting last year “is not reasonably available.”
Robert S. Litt, general counsel for Director of National Intelligence James Clapper, cites “highly classified, compartmented, and sensitive information originating with a number of different executive branch agencies” as justification for withholding the document on the shooting, which left 13 dead and more than 30 injured.
In what may be a slight to the defense, the letter states a review of the material would be complicated and the DNI letter strongly hints it will never be produced for Hasan’s defense.
“The document you requested is an interagency joint response. ... Accordingly, we cannot produce the document (if ever) until after a detailed and time-consuming interagency coordination and consultation regarding the report and the underlying highly sensitive information it contains. ... As a result, we have determined that this report is not reasonably available…”
Fox News’ Specials Unit reported earlier this year, as part of an hourlong documentary on Anwar al-Awlaki, that at least 18 e-mails were exchanged between Hasan and the cleric. In one e-mail exchange, two sources who have reviewed the e-mails confirm, Hasan asked Awlaki to appear as a guest presenter at a fundraising/scholarship event in the U.S. The cleric declined, adding that he doesn’t visit the U.S. anymore.
John Galligan, Hasan's defense attorney, told Fox News that he requested the White House intelligence report nearly a year ago, and it is only now that he has officially been told the information will not be available. Despite repeated requests, Galligan said other documents are being blocked, including the full accountability review of Hasan’s supervisors at Walter Reed, a classified annex to the Fort Hood report by former Army Secretary Togo West and retired Admiral Vern Clark, completed in January, as well as all of the e-mails exchanged between Hasan and Awlaki. Galligan told Fox News he has only 9 e-mails and characterized them as benign.
“How do you put a guy on trial for his life without giving his defense full discovery?” Galligan told Fox. “No one in their right mind would dispute that the report (the White House report) is relevant.” Galligan said some news reports suggest that the disclosure of some classified information relating to case would hurt the prosecution.
“I read that as being potentially beneficial to the defense,” he said.
An Article 32 hearing, where an army investigator determines whether Hasan’s case proceeds to a general court-martial and whether the death penalty will be in play, has just concluded. Sources tell Fox News that the investigating officer has recommended the court martial and death penalty because of aggravating factors. A final decision has yet to be made.
A transcript from the Article 32 hearing shows that the Army was notified of the DNI’s decision to block the report on or before October 21, 2010.
“Maybe Colonel Mulligan could give us an update on the other aspects of discovery that we addressed when we first started?” Galligan asked. “That was his communication concerning the White House materials. If he could just let us know where we stand?”
Col Mulligan responded. “Sir, yesterday I received from DNI a letter from their general counsel saying they’ll not provide the president’s 45-day intelligence report. I was waiting until the conclusion of the hearing to inform the defense; I have not yet searched all my e-mails.”
But the DNI letter was not provided to the defense until this week, on Monday, and 10 minutes before the Article 32 hearing continued.
Fox News asked the office of the DNI for comment – specifically why it had taken nearly a year to answer the request by Hasan’s defense team, whether there was a delay with the DNI or the Army and whether blocking the document, which the defense says maybe critical to the Army psychiatrist’s defense, is consistent with the Obama administration’s stated goal of transparency.
A spokesman for the DNI told Fox News, “We are not going to comment on ongoing criminal matters.”
Fox News Reporting's Pamela Browne, Cyd Upson and Gregory Johnson contributed to this report.