Probably not.
On October 8, 2026, U.S. Secretary of Defense Pete Hegseth announced that Nidal Hasan, the former U.S. Army major and psychiatrist convicted of killing 13 soldiers and wounding another 31 at Fort Hood, Texas, in late 2009, would be executed by firing squad.[1] Setting aside the return to an older mode of execution (the last servicemember executed by firing squad was in 1945[2]), the decision is unusual in several ways. First, according to Secretary Hegseth’s statements, the execution will be held at Fort Hood, the scene of the crime, rather than at the U.S. Disciplinary Barracks where Hasan is confined.[3] Second, it will also involve the shooting of a man in a wheelchair, given Hasan’s paralysis from the waist down after law enforcement shot him during his attack.[4] But perhaps most unusual is Secretary Hegseth’s announcement that the execution will be carried out in public and livestreamed, a move that is legally problematic. [5] This plan may be short-lived, as administration officials have expressed doubt about livestreaming the December 3, 2026 execution. Vice President J.D. Vance commented: “I don’t know that that’s actually going to happen” and said he would not watch it if it did occur.[6] President Trump also recently acknowledged that the decision about livestreaming Hasan’s execution is still in question.[7]
This brief analysis focuses on the laws and regulations implicated by livestreaming this execution. It does not address even more concerning moral objections, the global outrage,[8] or the terrorist recruitment fodder[9] that are the foreseeable consequences of a brutal and internet-accessible execution of a Muslim prisoner by an administration long-known for its anti-Muslim animus.[10] It concludes that there is a viable Eighth Amendment argument that these deviations from established rules and practices constitute “cruel and unusual punishment.”[11]
- Statutes Are Silent
Federal law gives the “control and management” of federal penal institutions and their practices to the Department of Justice under the direction of the Attorney General.[12] This law, however, makes an explicit exception for military correctional institutions and practices.[13] The law does not otherwise specify or suggest what agency would have such control and management over Hasan’s confinement, let alone the means and methods of his execution.
This ambiguity requires us to look at other federal laws that could be applicable, like those governing the U.S. military’s criminal justice system: the Uniform Code of Military Justice (UCMJ).[14] Unfortunately, there is nothing in the UCMJ regarding the conduct of executions. Rather, its text is largely limited to addressing which crimes may be punished by death and to requiring that the President personally approve any death sentence before it is carried out.[15]
Nor has the military’s highest court filled the gap. Neither the Court of Appeals for the Armed Forces (CAAF) nor its predecessor, the Court of Military Appeals, has ever adjudicated a challenge to the method or manner of a military execution. CAAF affirmed Hasan’s death sentence without reaching any such question,[16] and it has since held that it lacks jurisdiction to entertain a collateral petition from a capital prisoner whose case is final under the UCMJ, leaving habeas corpus in the Article III courts as the available remedy.[17] Any challenge to the manner of Hasan’s execution is therefore likely to be heard, if at all, by a federal district court rather than a military one.
- Regulations are Silent, but Instructive
Federal regulations implementing otherwise discretionary legislation are helpful, though not controlling, in this case. 28 C.F.R. § 26.4 implements the authority of the Attorney General to “promulgate rules for the government” concerning federal penal and correctional institutions (other than military institutions).[18] Section 26.4(c) limits who may be allowed to witness the execution in a private setting, and section 26.4(f) expressly bans “photographic or other visual or audio recording of the execution.”[19] This suggests that the vast bulk of prisoners held under federal authority are protected from public viewing of their execution, leaving military prisoners on death row the lone exceptions. In other words, if Hasan had been a civilian (and thus not subject to the UCMJ) convicted of multiple counts of murdering U.S. soldiers on a U.S. military installation for terroristic motives inspired by religious extremism, his execution could not be livestreamed.
Absent on-point legislation or an applicable rule from the Code of Federal Regulations, the next logical place – and it turns out to be the only place – to look for relevant administrative agency rules regulating the conduct of executions is the regulation governing the practices and procedures of the Army Corrections System, “Procedures for Military Executions.”[20] Yet, this regulation is strangely silent on the question of live publicity or broadcasting of an execution as well.
However, this regulation may be a starting point for inferring what the answer ought to be. It expressly limits the types and numbers of witnesses authorized to view the execution in-person: relevant corrections facility personnel, the prisoner’s counsel and family if requested by prisoner, two media representatives, a chaplain, victims or relatives/reps of victims, and nobody under age 18.[21] There is no provision in this regulation that allows the prisoner to waive this list to permit a broader audience. This categorical limitation prescribing the only persons permitted to view a military execution implies that the live broadcasting of the event around the world through the internet would violate the plain language of the regulation.
As an administrative regulation, rather than a law, it is reasonable to ask whether the Secretary of Defense or some designated agent could waive such a limitation on witnesses or make livestreaming an execution permissible. The answer is: possibly. “The proponent of this regulation is the Provost Marshal General [of the Army]. The proponent has the authority to approve exceptions or waivers to this regulation that are consistent with controlling law and regulations.”[22] Therefore, if the Provost Marshal General were to, at the direction of the Secretary of the Army or Secretary of Defense, make such an exception or waiver, the question of lawfulness remains. That change would have to be “consistent with controlling law and regulations.”[23] As will be described below, the controlling law is uncertain because it likely rests on the application of the Supreme Court’s Eighth Amendment jurisprudence and is a question precedent has not yet addressed.
- Is It “Cruel and Unusual Punishment?”
The death penalty as an adjudged punishment for murder is constitutional, and this brief sketch does not contest the established law. The Supreme Court’s Eighth Amendment jurisprudence generally focuses on whether death is a cruel and unusual punishment for certain offenses (e.g., murder, rape),[24] or given the intellectual disabilities of the offender,[25] the offender’s insanity at the time of the execution,[26] or the age of the offender at the time the offense was committed.[27] In these cases, the Court’s “proportionality” principle dictates that any punishment disproportionate to the offense, based on the “evolving standards of decency that mark the progress of a maturing society,” is cruel and unusual.[28] This standard is, by definition and design, vague and unfixed. But those public mores “must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.”[29] Objective indicia of society’s standards of decency include legislative enactments, state practices, historical development of the punishment, and public opinion both domestically and internationally, but are not limited to those clues.[30]
But the issues raised by Hegseth’s planned livestream of Hasan’s execution are of a different Eighth Amendment character. A federal prisoner (even one under military custody) may raise a claim that the conditions of his confinement or the application of some punishment or discipline while confined violate his Eighth Amendment protection against “cruel and unusual punishments.”[31] In fact, Hasan has made such a claim before, arguing several years ago that he was “forcibly shaved” before and after his trial, and punished for refusing to shave while confined.[32]
Article 55 of the UCMJ prohibits “any other cruel or unusual punishment” from being inflicted upon any person subject to the UCMJ.[33] Moreover, the Army’s regulation governing the entire Service’s corrections system (not just its executions) restates this ban on such conduct as a “punitive measure” imposed on prisoners.[34] Military case law analyzing the Eighth Amendment implications of prison conditions has narrowed the review to three questions:
to establish a cruel and unusual punishment violation of Article 55, UCMJ, or the Eighth Amendment, for confinement conditions, appellant must show (1) an objectively, sufficiently serious act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety; and (3) that he has exhausted the prisoner-grievance system and that he has petitioned for relief under Article 138, UCMJ.[35]
But, again, the question of whether the execution passes constitutional muster when it is public is not answered by any of those questions focusing on health and safety concerns raised by denying the prisoner necessities.
There is a line of Supreme Court cases addressing prisoner claims that the method of execution itself violates the ban on “cruel and unusual punishments.”[36] That standard establishes a high burden for the prisoner:
subjecting individuals to a risk of future harm – not simply actually inflicting pain – can qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be “sure or very likely to cause serious illness and needless suffering,” and give rise to “sufficiently imminent dangers.” We have explained that to prevail on such a claim there must be a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that prevents prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.”[37]
Moreover, the prisoner must demonstrate that a proposed alternative to the method of execution is more than “slightly or marginally safer.”[38]
To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.[39]
But Hasan’s argument would not be about whether death by firing squad, as opposed to lethal injection or some other modality, violates his constitutional right. These cases – and the high threshold that the prisoner must cross to be successful – address the method (“protocol”) by which the government administers the fatal stroke, be it chemical, mechanical, or electrical. These protocol cases do not, and their test focusing on “harm” and “pain” to the prisoner himself cannot, address the far more diffuse problem of public viewership of the event.[40]
In my view, the Eighth Amendment tests related to the “conditions” of imprisonment and the “protocols” for administering the agent that actually kills the condemned prisoner are inapt. Instead, to address the as-of-yet-unaddressed question of public viewing, the Court most likely would return to the primary “evolving standards of decency” standard described above.
How such indicia of contemporary societal decency might be viewed under Hasan’s circumstances is not obvious, though Professor Stephen Vladeck has suggested that a court would find it “exceedingly difficult to reconcile” changing social mores with a novel public execution carried live over the internet.[41] If a court were to address this under the Eighth Amendment “evolving standards of decency” test and were only left with civilian executions by which to draw analogies, several indicia suggest public livestreaming would be barred.
First, of the twenty-seven states that authorize a death sentence, no state authorizes public executions.[42] They vary in the administrative details covering who exactly may witness the private execution conducted within the correctional facility, but none would permit livestreaming the execution of a state prisoner on death row. Furthermore, no state has conducted a public execution since 1936.[43]
Second, the Attorney General’s rules regulating the conduct of federal civilian executions expressly limit the number and types of witnesses attending the execution and expressly bar “photographic or other visual or audio recording of the execution.”[44] A reasonable interpretation of that phrase would include livestreaming, which is commonly defined as “to broadcast (an event) over the Internet for live viewing.”[45] If the ultimate objective is to prevent the public from viewing the proceeding,[46] it is immaterial whether that observation happens live over the internet or subsequent to the execution via publication by an audio or video recording, or through photographs. Though applicable only to civilian prisoners under the authority of the Department of Justice, both that agency and the Department of Defense operate federal criminal justice and correctional systems and both report to the President of the United States. Finding a principled distinction for disallowing public executions in one but allowing it in the other is difficult, and – at the very least – none has been offered by the Secretary of Defense.
Third, the United States is a party to the International Covenant for the Protection of Civil and Political Rights.[47] Public execution, as interpreted under this treaty, is a human rights violation of Article 7, which prohibits “torture or to cruel, inhuman or degrading treatment or punishment.”[48] The United States, it should be noted, issued a “reservation” when it ratified the Treaty in 1966: “the United States considers itself bound by Article 7 to the extent that `cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”[49] Nevertheless, in 2017, the United States promulgated its observations on the Draft General Comment No. 36 in relation to the ICCPR:
We agree that under Article 6 [of the ICCPR], the death penalty may not be imposed or carried out in a manner that is contrary to the provisions of the ICCPR, including Article 7 with respect to any method that would amount to torture or to other cruel, inhuman, or degrading punishment or punishment.[50]
Fourth, the United States government has often condemned other nations and militant armed groups for their practices of public execution.[51]
If these are indicia of anything, they point toward the conclusion that the American “evolving sense of decency” categorically rejects the idea of a public execution. That would be enough to find that livestreaming the event violates the Eighth Amendment. At least two other features of Hegseth’s plan to invite the global public to witness Hasan’s execution live should reinforce this conclusion. First, that it will be a firing squad, a technique not used in the Army since 1945 and contrary to the directive in the Army Regulations governing executions that lethal injection is the approved method.[52]Second, that it will place Hasan back at the scene of his crime, where a large memorial now sits to honor his victims.[53]This is not only contrary to that same regulation – which clearly envisions the execution conducted at the U.S. Disciplinary Barracks, a federal prison[54] – but it also serves no legitimate government purpose (like deterrence). Rather, its purpose is to focus public anger and to invite or even encourage feelings of retribution, where the eight soldiers detailed to the firing squad are no doubt intended to serve as a visible proxy for his victims.[55] By changing the established mode of execution, and by placing the condemned prisoner back at the scene of his crime to carry out that execution by members of the same profession Hasan targeted, Hegseth’s plan reeks of retaliatory hostility calculated to inflame public passions. The procedural differences between this planned execution and every other military execution (not to mention every other civilian execution), without such a legitimate government purpose, strengthen the conclusion that it grossly flouts our current sense of decency. That community morals-based criticism alone makes this manner of execution unconstitutional.
Conclusion
This brief note has outlined the legal constraints, limited though they are, that should block Secretary Hegseth’s ill-considered plan to livestream Hasan’s execution. At bottom, it likely rests on a successful claim, by Hasan himself, that such a public execution violates his Eighth Amendment and Article 55, UCMJ, protections against “cruel and unusual punishment.” Considering Hasan’s professed desire to be martyred,[56] and the lack of similar public execution cases as precedent for that constitutional argument, the likelihood of him making such a claim is low.[57] Preventing an uncivilized, indecent, undignified spectacle of vengeance – notwithstanding the prisoner’s own preference – therefore rests more securely on the shoulders of the moral and consequentialist arguments that have, so far, animated most of the criticism leveled at Hegseth’s plan.
[1] Konstantin Toropin, Pentagon says firing squad execution of Fort Hood shooter will be livestreamed, PBS News (Oct. 8, 2026), https://perma.cc/ZE79-9RY3; see also U.S. Dep’t of Army, Reg. 190-55, U.S. Army Corrections System: Procedures for Military Executions para. 3-1 (2006) [hereinafter Procedures for Military Executions] (requiring that executions will be carried out by lethal injection).
[2] This is believed to be Private Eddie Slovik in January 1945. Allen Frazier, Death by Firing Squad: Eddie Slovik Became the Only U.S. Soldier Executed for Desertion in WWII, Military.com (Dec. 8, 2025), https://perma.cc/6PD5-9HWA. However, several firing squad executions of U.S. soldiers were carried out in wartime conditions afterward, culminating with the execution of Dan Lee in November 1945, in Luzon, Philippines. Death Penalty Info. Ctr., Historic Military Executions, https://perma.cc/997T-ABEY.
[3] Toropin, supra note 1.
[4] Pentagon says the firing squad execution of Fort Hood shooter will be livestreamed, NPR (Oct. 9, 2026), https://perma.cc/HP25-5GBS.
[5] Toropin, supra note 1; Haley Britzky, Army caught off guard by Hegseth’s order to make firing squad execution public, CNN (Oct. 10, 2026), https://perma.cc/L3EC-NMMQ (quoting Secretary Hegseth: “We’ll make sure that people are able to watch it, that it’s public, because people need to understand that there’s serious consequences for these types of things”).
[6] Vance, Republican lawmakers and religious leaders oppose Pentagon plan to livestream an execution, Reuters (Oct. 9, 2026), https://perma.cc/B2QF-JF4E.
[7] Steven Beynon, Trump says ‘they’re making a determination’ on livestream of Hasan execution, ABC News (Oct. 9, 2026), https://perma.cc/H6BW-JP48.
[8] The United Nations Office of the High Commissioner for Human Rights stated: “The livestreaming of an execution is tantamount to a public execution and would breach the absolute prohibition of torture.” Deborah Akwa, UN Condemns US Plan to Livestream Execution, News Central (Oct. 9, 2026), https://perma.cc/H7DF-PNL3. Former Secretary of State Hillary Clinton called the decision “barbaric.” David Smith & Ariana Baio, ‘Medieval’ and ‘disturbing’: US plan to livestream execution elicits global condemnation, The Guardian (Oct. 9, 2026), https://perma.cc/YZD5-L77B; Senator Chris Murphy (D-C.T.) described public executions as “medieval.” Id.
[9] Elizabeth Bruenig, Public Execution Won’t Have the Effect Trump Intends, The Atlantic (Oct. 9, 2026), https://perma.cc/9TQH-M43P; Mallory Wilson, Trump sends mixed signals on livestreaming Hasan execution, The Hill (Oct. 9, 2026), https://perma.cc/B2QE-LHRD (quoting Senate Armed Services Committee ranking member Jack Reed (D-R.I.): “[this plan is] a gift to anti-American terrorist recruiters” [and is] “absolutely shameful and damaging to America’s interests and core values”).
[10] Faiza Patel & Rachel Levinson-Waldman, The Islamophobic Administration, Brennan Ctr. for Just. (Apr. 19, 2017), https://perma.cc/G87U-PSL6.
[11] U.S. Const. amend. VIII.
[12] 18 U.S.C. § 4001(b)(1).
[13] Id.
[14] 10 U.S.C. §§ 801–946a.
[15] E.g., 10 U.S.C. § 885(c) (desertion, but only in a time of war); § 894(b) (“attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition”); § 899 (misbehavior before the enemy); § 903 (spies); § 903a (espionage); § 903b (aiding the enemy); and § 918 (murder); see also 10 U.S.C. § 857(a)(3) (death sentence “may not be executed until approved by the President”).
[16] United States v. Hasan, 84 M.J. 181 (C.A.A.F. 2024), cert. denied, No. 24-5225 (U.S. Mar. 31, 2025). The opinion rejected an Eighth Amendment challenge premised on Hasan’s mental illness while noting that an earlier finding of competency does not foreclose a later determination that a prisoner is presently insane and cannot be executed.
[17] United States v. Gray, 77 M.J. 5 (C.A.A.F. 2017) (per curiam) (holding that CAAF lacks jurisdiction over a coram nobis writ-appeal in a capital case that is final under the UCMJ, and noting that habeas corpus in the Article III courts remained available).
[18] 18 U.S.C. § 4001(b)(1).
[19] 28 C.F.R. § 26.4(f).
[20] Procedures for Military Executions, supra note 1.
[21] Id., para. 2-5a–b.
[22] Id. at i (“Proponent and Exception Authority”).
[23] Id.
[24] Gregg v. Georgia, 428 U.S. 153 (1976) (death is constitutionally permissible punishment for murder); Coker v. Georgia, 433 U.S. 584 (1977) (death as punishment is unconstitutional for rape of an adult woman); Kennedy v. Louisiana, 554 U.S. 407 (2008) (death is unconstitutional as punishment for rape of a child and any crime not involving a homicide).
[25] Atkins v. Virginia, 536 U.S. 304 (2002) (unconstitutional).
[26] Ford v. Wainwright, 477 U.S. 399 (1986) (unconstitutional).
[27] Roper v. Simmons, 543 U.S. 551 (2005).
[28] Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); United States v. Pena, 64 M.J. 259, 265 (C.A.A.F. 2007) (in the absence of legislative intent to provide greater protections under the UCMJ, the courts assess whether the action taken by the government (be it the sentence itself or conduct that disciplines a prisoner) is “incompatible with the evolving standards of decency that mark the progress of a maturing society.”
[29] Kennedy, 554 U.S. at 420.
[30] Roper, 543 U.S. at 563; Enmund v. Florida, 458 U.S. 782, 788-89 (1982) (citing to Coker, 433 U.S. at 592, the Court considered international opinion, historical development, and sentencing decisions).
[31] U.S. Const. amend. VIII.
[32] Hasan, 84 M.J. 181. (holding that this conduct by the U.S. Disciplinary Barracks personnel did not violate his Eighth Amendment or Article 55, UCMJ, protections against cruel and unusual punishment).
[33] 10 U.S.C. § 855.
[34] U.S. Dep’t of Army, Reg. 190-47, The Army Corrections System (2006) [hereinafter Army Corrections System].
[35] United States v. Pullings, 83 M.J. 205, ____ (C.A.A.F. 2023).
[36] See, e.g., Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879) (upholding death by firing squad).
[37] Baze v. Rees, 553 U.S. 35, 49–50 (2008) (internal citations omitted) (plurality opinion). This test was later adopted by the Court majority in Glossip v. Gross, 576 U.S. 863, 877–78 (2015).
[38] Baze, 553 U.S. at 51.
[39] Baze, 553 U.S. at 52. The Court subsequently reinforced that the test established by Baze and Glossip governs all “method of execution claims.” Bucklew v. Precythe, 587 U.S. 119, 133-34 (2019).
[40] Bucklew, 587 U.S. at 136-37 (“whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence”).
[41] Abbie VanSickle & John Ismay, Fort Hood Shooter’s Execution Could Face Challenge in Federal Courts, N.Y. Times (Oct. 9, 2026), https://perma.cc/42LN-89E8.
[42] Steven Beynon & Catherine Alaimo, Hasan execution will be live-streamed, Pentagon official says, ABC News (Oct. 8, 2026), https://perma.cc/9E7R-6PYG.
[43] See generally Perry T. Ryan, The Last Public Execution in America (1992) (account of the 1936 trial and execution of Rainey Bethea in Owensboro, Kentucky, before a crowd of 20,000 people).
[44] 28 C.F.R. § 26.4(f).
[45] Live Stream, Merriam-Webster, https://perma.cc/58NM-2L2F. See also Livestream, Cambridge Dictionary, https://perma.cc/83GH-Z7KK (“to broadcast video and sound of an event over the internet as it happens”).
[46] It should be noted that it does not matter what the government’s motive is behind its explicit shielding of executions from public view, whether it be to secure the privacy and solemnity of the act, to avoid public backlash, or to avoid potentially embarrassing, botched executions. “Deterrence” – as Hegseth’s motive in publicizing the event appears to be – is not an exception to this blanket prohibition.
[47] UN Treaty Body Database, https://perma.cc/GVV7-PELN.
[48] Livestreaming US execution would breach prohibition of torture, UN rights office warns, UN News (Oct. 9, 2026), https://perma.cc/BY9W-7DFH.
[49] International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171.
[50] Observations of the United States of America On the Human Rights Committee’s Draft General Comment No. 36 On Article 6 – Right to Life, at 18 (para. 42), https://perma.cc/WM3Y-2MHY.
[51] U.S. Dep’t of State, 2023 Country Reports on Human Rights Practices: North Korea, https://perma.cc/7SJ7-EQZS; US Slams 2nd Iran Execution Amid Protests, NDTV (Dec. 13, 2022), https://perma.cc/YW5N-DG8A; Julie Hirschfeld Davis, After Beheading of Steven Sotloff, Obama Pledges to Punish ISIS, N.Y. Times (Sept. 3, 2014), https://perma.cc/4VF9-LGLT.
[52] Procedures for Military Executions, supra note 1.
[53] Nick Conner, Killeen Nov 5 memorial dedicated, Fort Hood Sentinel (Mar. 17, 2016), https://perma.cc/ZC4W-F3ZF.
[54] Procedures for Military Executions, supra note 1, para. 2-6a (discussing the communications network to be established and used between the White House and the U.S. Disciplinary Barracks before and during the execution).
[55] At least one of his surviving victims told reporters that he intends to be present (to “lock eyes with” him) but thought viewership should not be public beyond the families of the victims and fellow survivors. Catherine Alaimo, Fort Hood survivors speak out on Pentagon’s decision to livestream Hasan’s execution, ABC News (Oct. 10, 2026), https://perma.cc/BN5B-A79J.
[56] Nomaan Merchant & Mike Graczyk, Hasan: ‘I Would Still Be a Martyr’ if Executed, AP News (Aug. 13, 2013), https://perma.cc/F6Z2-5G66.
[57] Ed White & Claudia Lauer, Legal path seems narrow to challenge livestream of Fort Hood shooter’s execution, experts say, PBS News (Oct. 9, 2026), https://perma.cc/NL23-YYXJ.
