By Chelsea J. Carter
FORT HOOD, Texas (CNN) — An Army psychiatrist defending himself against charges that he targeted soldiers in a massacre at Fort Hood argued against allowing a jury to consider lesser charges, telling the court the attack was not carried out in the heat of sudden passion.
There was “adequate provocation” for the attack because the soldiers were going to participate in “an illegal war” in Afghanistan, Maj. Nidal Hasan told a military judge considering Wednesday whether to include a lesser charge of voluntary manslaughter or unpremeditated murder in instructions to be given to the jury.
The instructions are scheduled to be delivered to the jury Thursday morning before closing arguments begin. The case will then be handed to the jury of 13 officers, who will determine whether Hasan is guilty of 13 counts of premeditated murder and 32 counts of premeditated attempted murder in connection with the Nov. 5, 2009, attack.
Hasan told the judge that he agreed with prosecutors, who were also arguing against the inclusion of lesser charges, saying the attack wasn’t carried out in “the heat of sudden passion.”
The judge, Col. Tara Osborn, told the prosecutors and Hasan she would take their arguments into consideration as she drew up the instructions.
It was unknown whether Hasan, who faces a possible death sentence, planned to deliver a closing statement.
Hasan’s decision not to offer a defense was an anticlimactic end to the testimony portion of a court-martial in which prosecution witnesses, primarily survivors, painted a horrific picture of what unfolded inside the processing center during the attack.
Inside the courtroom, the liaison for the family members of those killed handed out packages of Kleenex before the day’s proceeding.
As they have nearly every day of the trial, some of the wives and mothers of the 12 soldiers and one civilian killed had their eyes fixed — some in a cold stare —on Hasan.
Much has been made of Hasan’s defense or, as his stand-by attorneys have said, the lack of it. The judge declined a request by Hasan’s attorneys to drop out of the case. The attorneys argued that Hasan was helping the prosecution put him to death.
There may be something to that claim.
Hasan took credit for the shooting rampage at the outset of the trial, telling the jury during opening statements that the evidence will show “I was the shooter.”
The judge barred Hasan from pleading guilty at the start of the court-martial. Under military law, defendants cannot enter guilty pleas in capital punishment cases.
The judge has refused to allow Hasan to argue “defense of others,” a claim that he carried out the shootings to protect the Afghan Taliban and its leaders from U.S. soldiers.
Perhaps as a way around that ruling, Hasan in recent days has leaked documents through his civilian attorney to The New York Times and Fox News that offer a glimpse of Hasan’s justification for carrying out the attack. Among the documents was a mental health evaluation conducted by a military panel to determine whether Hasan was fit to stand trial.
“I don’t think what I did was wrong because it was for the greater cause of helping my Muslim brothers,” he told the panel, according to pages of the report published by The New York Times.
He also said, according to the documents: “I’m paraplegic and could be in jail for the rest of my life. However, if I died by lethal injection, I would still be a martyr.”
Military prosecutors called 89 witnesses and submitted more than 700 pieces of evidence before resting their case, hoping to show that the American-born Muslim had undergone what they described as a progressive radicalization.
They have argued to the jury that Hasan, who was scheduled to deploy to Afghanistan, did not want to fight against other Muslims and believed he had a jihad duty to kill as many soldiers as possible.
The judge excluded much of the evidence that the prosecution contends goes to the heart of the motive for the attack, including e-mail communications between Hasan and Anwar al-Awlaki, the U.S.-born cleric who officials say became a key member of al Qaeda in the Arabian Peninsula. He was killed in U.S. drone strike in 2011.
She also declined to allow prosecutors to use materials they maintain showed Hasan’s interest in the actions of Army Sgt. Hasan Akbar, the American soldier sentenced to death for killing two soldiers and wounding more than a dozen others at the start of the Iraq war — an attack he said he carried out to stop soldiers from killing Muslims.
Along with the e-mails and the material related to Akbar, Osborn also declined to allow the use of Hasan’s academic presentation on suicide bombings, saying “motive is not an element of the crime.”
The final witness called by the prosecution, Dr. Tonya Kozminski, testified Tuesday about what Hasan told her would happen to the Army if he were deployed.
“The last thing he said … ‘They will pay,'” Kozminski said.
CNN’s Ed Lavandera and Jason Morris contributed to this report.