MICHEL MARTIN, HOST:
The Trump administration plans to livestream the execution of the man convicted of murdering 13 people at Fort Hood. The Defense Department says it will use a firing squad to execute former Army Major Nidal Hasan in December. It would be the first military execution by firing squad since World War II and the first known public execution in 90 years. Critics have called those plans barbaric and abhorrent. One of those critics is Eugene Fidell. He's a visiting lecturer at Yale Law School who specializes in military law. Good morning, Mr. Fidell.
EUGENE FIDELL: Good morning.
MARTIN: You, like many other people, have extremely strong feelings about this. Tell us why.
FIDELL: Well, to begin, there's a kind of brutality to what's proposed here. It resonates, for me, at least, with the display of wrestling that our president caused to be done on the White House grounds not so long ago. An execution is supposed to be a dignified, formal, calm experience, not for the individual most immediately concerned, obviously. But it's supposed to be dignified. It's an act of the state. It's the most solemn act of the state. And instead, this is being turned into what I would call execution porn.
MARTIN: Defense Secretary Pete Hegseth told the right-wing streaming platform Real America's Voice why he wants the public to see this.
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PETE HEGSETH: People need to understand that there's serious consequences for these types of things.
MARTIN: Do you think that livestreaming an execution does serve as a deterrent?
FIDELL: No. That's a preposterous claim. What's the difference between being put to death and being put to death before a worldwide audience? The deterrent effect would be precisely the same. In fact, it's enough, one would think, to know that you're facing the death penalty in order to deter people. That may or may not deter you. But the delta between that kind of deterrence and what I'll call Hegseth deterrence is zero.
MARTIN: There seems to be a difference in federal - I don't know. I'm going to ask you this - between the civilian standards and the military standards. DOJ procedures explicitly prohibit the recording and broadcasting of executions in federal prisons. You're an expert in military law. Do military regulations speak to this?
FIDELL: No, they don't. I would hope that one of the things that will come out of this is a change so that military executions - starting now, but certainly going forward - will be subject to the Department of Justice regulations, which govern executions conducted by their Bureau of Prisons. In addition, I think it's important for listeners to realize that what we're doing here puts us in terrible company. The kind of countries that do this are North Korea, the Taliban government in Afghanistan, Iran, at times. I mean, this is not company that we want to be in in designing our criminal justice system.
MARTIN: The Eighth Amendment to the Constitution prohibits cruel and unusual punishments. You know, there are those who argue that the death penalty on its face constitutes cruel and unusual punishment because there is no humane way to accomplish this. But having that being said, the fact is the death penalty still is being carried out, is there any way in which broadcasting this elevates that standard to cruel and unusual, in your view?
FIDELL: You could make the argument. The question is whether the U.S. Supreme Court would embrace that argument, and we don't really know how that would play out. What I would say is that argument is never going to get made unless Dr. or Major Hasan makes it, and so far, he hasn't brought a lawsuit, so far as I'm aware.
MARTIN: Does anyone else have the standing to bring an argument that there is this question of moral injury, that those who are forced to either carry this out, to be part of this are experiencing a moral injury? Is there any - does anyone else have standing to bring this forward?
FIDELL: I can't think of anyone else who would have standing. Now, maybe somebody can get really creative, but I don't see it.
MARTIN: That is Eugene Fidell. He's a visiting lecturer at Yale, and he specializes in military law. Mr. Fidell, thank you so much for your time.
FIDELL: Thank you. Transcript provided by NPR, Copyright NPR.
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