New Documents in Fort Hood Shooting Case Raise Concerns About Prosecution's Handling of Evidence

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A new filing in the Fort Hood case shows that a key White House Intelligence report on the Fort Hood Shooting in November 2009 is still being withheld from the defense. The Army also admits it does not have all of the emails exchanged between the accused shooter Maj. Nidal Hasan and the first American on the CIA’s kill or capture list, Anwar al-Awlaki.

The documents, filed on July 14 as part of the Fort Hood prosecution, state:

“Trial counsels (Army lawyers) have produced all electronic communication in their possession between the Accused and Anwar al-Awlaki. On information and belief, trials counsels do not believe they possess all electronic communications between the Accused and the individuals (al-Awlaki.)”

Hasan’s defense lawyer, John Galligan, says he was given nine emails by the military as part of the discovery process. Yet, sources who have reviewed the email exchange between Hasan and Awlaki which began in December 2008 tell Fox News there are at least 18 emails.

Characterization of the emails exchanged between the accused Fort Hood shooter and the cleric range from benign to clearly concerning in tone. In one email, Hasan reportedly asked if it was okay to kill Americans – though U.S. officials will not comment publicly on the accuracy of those reports or the contents of the emails.

Yet, some former intelligence officials say the mere contact between Hasan and Awlaki – an American citizen who leads the new breed of Digital Jihadists who spread their ideology of hate through the web – should have prompted immediate action. Fox News’ investigative unit, in its special “Secrets of 9/11,” has shown that Awlaki’s contact with three of the 9/11 hijackers was not a series of coincidences but rather evidence of a purposeful relationship.

On the White House Intelligence report that was completed more than a year and a half ago, the Hasan defense team is told in the same July 14th court filing that Army lawyers object to providing the documents but are now willing to let a third party review it.

The documents state:

“…trial counsels (Army lawyers) do not object to a military judge conducting an in-camera review to determine which portions of the report should be made available for review and inspection to defense counsels able to obtain or already possessing appropriate security clearances. “

When Fox News first reported on the White House intelligence report in November 2010, a letter from the general counsel for the director of national intelligence (DNI) – the nation’s top intelligence official - to the chief Army prosecutor, Col. Michael Mulligan said it contained “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 have been a slight to the defense, the letter stated a review of the material would be complicated and the DNI letter strongly hinted it might 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…”

One of defense attorney Galligan’s long-standing complaints is that his requests, which began 20 months ago, to get the proper security clearances for the case were ignored. The new filing supports Galligan’s claim that he is still without the clearances he has requested to adequately defend his client.

“Trial counsels will request Mr. Galligan’s clearance be re-instated. “ the filing states.

Hasan is scheduled to appear at Fort Hood in a military court on Wednesday. One source told Fox News that they expect Hasan will wear his Class A uniform because it is the wish of the judge in the case. A year ago, Hasan wore Army fatigues for his brief court appearance as part of the Article 32 process which is the military’s equivalent of a grand jury.

National Correspondent Catherine Herridge's book "The Next Wave: On the Hunt for al Qaeda's American Recruits" was published by Crown in June. It draws on her reporting for Fox News into al-Awlaki and his new generation of recruits -- Al Qaeda 2.0. New evidence shows the cleric was an overlooked key player in the 9/11 attacks who double-crossed federal investigators.