Approaching the third anniversary of the Nov. 5 Fort Hood shooting, alleged shooter Maj. Nidal Hasan has managed to delay his court-martial indefinitely.
Government-appointed attorneys for the 42-year-old Army psychiatrist argued repeatedly that they had been inundated with thousands of documents of evidence that had not been fully reviewed, and military judge Col. Gregory Gross allowed Hasan’s counsel more time. But eventually, Gross set Aug. 20 as the firm date for Hasan’s trial to begin.
On June 7, the defense team notified Gross that Hasan had grown a beard, a decision that created legal wrangling over Hasan’s freedom to practice religion, the Army’s ability to forcibly shave a soldier and questions over the judge’s impartiality.
Now, the proceedings have no start date in sight while military appeals courts examine three complex issues.
Issue 1: Disrupting court
When Hasan arrived in the Fort Hood court wearing a full beard, it appeared to be no more than an annoyance. Gross ordered him to shave. Hasan refused and was removed from the courtroom.
Wearing a beard violates military regulations on appearance. A soldier is only allowed to grow a well-kept mustache. Not following the regulations disrespected the court, Gross said.
Gross held Hasan in contempt of court and placed him in a trailer, where he remained in constant contact with his lawyers and watched the proceedings on a closed-circuit television.
Excluding Hasan from the courtroom could be grounds to appeal any convictions that arise from trial, so when it came time for Hasan to enter pleas to 13 charges of premeditated murder and 32 counts of attempted premeditated murder, he would have to make them in person.
When that time came, Gross ordered Hasan forcibly shaved, which led his defense team to appeal and brought proceedings to a halt.
Gross and government appellate attorneys argue that allowing Hasan to wear a beard would create bias in a jury. A panel of commissioned officers would be offended by his defiance of military regulations and would be unable to make an objective decision. The government argued that the easiest remedy was to have Hasan forcibly shaved.
“I would think they could warn (Hasan) of that danger, and require him to expressly waive any right to appeal on the ground of bias against his beard, so long as neither the judges nor the prosecutors appealed to that bias,” said Douglas Laycock, a law professor at the University of Virginia with a specialty in laws of religious liberty.
So far, Gross’ order stands. On Oct. 18, the Army Court of Criminal Appeals unanimously denied a defense request seeking to prevent Hasan from being forcibly shaved. That ruling will be reviewed by the Court of Appeals for the Armed Forces, the highest military appeals court.
Issue 2: Hasan’s religious freedom
Hasan has said he grew a beard for religious purposes. In several briefs filed with the courts, Hasan stated he fears his death is imminent. A devout Muslim, Hasan claims dying without a beard would be considered a sin.
Prosecutors have countered this claim, stating his decision is secular. They used a transcript of a telephone conversation between Hasan and an Al Jazeera reporter in which Hasan identifies with the Mujahideen to show that he has only grown a beard out of hatred for the Army and the government.
Hasan has asked for and been denied exemptions to military regulations on appearance.
In the past, the Army has allowed some Sikhs and Orthodox Jews to wear beards. There also is a secular exception for men who suffer from razor bumps or severe acne. The military permits them to grow beards up to one-quarter inch.
Two important cases provide conflicting legal precedent in this matter.
The 1986 Supreme Court case Goldman versus Weinberger ruled in favor of the military in a case where a Jewish Naval officer sued over not being allowed to wear a yarmulke.
In the 1999 ruling of Fraternal Order of Police Newark Lodge No. 12 versus the City of Newark, judges ruled against the Newark Police Department’s regulation preventing officers to grow beards.
The Newark case more closely resembles Hasan’s appeal. Two Islamic officers sued after the police department disciplined them over growing beards. “The Newark case could be very influential,” said Nelson Tebbe, a law professor at Brooklyn Law School who specializes in constitutional law and religious freedom. “I’m not predicting that (Hasan will) win, but he’s got an argument,” he said.
Laycock said he thinks Hasan will lose the appeal. Courts have given the armed forces deferential treatment, and the military has cited the need for unit soldier morale when defending its regulations and when encountering arguments about the free practice of religion.
Judges from the Court of Appeals for the Armed Forces have indicated that they may be receptive to Hasan’s argument. The court ordered Gross to provide reasons explaining why the Religious Freedom Restoration Act did not apply.
Issue 3: Judge bias
Lawyers for Hasan have repeatedly asked Gross to remove himself from the case. All their efforts so far have been denied.
But in the most recent ruling by the Army Court of Criminal Appeals, two judges stated that Gross had shown bias when he ordered Hasan forcibly shaved.
That decision should have been made by Hasan’s chain of command, their opinion states.
“Without compelling the government to act, the military judge’s decision to order the forced shaving at the government’s request was inappropriate as it compromised his impartiality,” the dissenting opinion states.
Hasan’s attorneys have until Wednesday to file appeals with the Court of Appeals for the Armed Forces. The government will then be given time to file briefs in response, and the court could order attorneys to make arguments in person.
If the high military court rules against Hasan, he would still have the right to appeal to the Supreme Court, which would further delay proceedings.
Contact Philip Jankowski at email@example.com or (254) 501-7553