Appeals Court: Accused Ft. Hood Shooter Can Be Forcibly Shaved

Accused Fort Hood shooter, Maj. Nadal Hasan, who has been seeking the right to wear a beard for religious reasons at his court martial trial, lost yesterday in the U.S. Army Court of Criminal Appeals.  In Hasan v. United States, (Army Ct. Cr. App., Oct. 18, 2012), an opinion of 5 judges held that Hasan's petition for a writ of prohibition should be denied. Hasan sought to prevent the government from forcibly shaving him after the military judge at his court martial ordered Hasan to be clean shaven for all subsequent pretrial proceedings and for his trial. (See prior posting.)  The majority concluded that the trial judge did not commit clear error in  concluding that Hasan was not necessarily growing his beard for religious reasons. The majority went on to hold that even if Hasan demonstrated that he was wearing a beard out of sincere religious conviction, the Army has compelling interests in requiring him to shave, and no less restrictive means are available to accomplish these interests:

The Army has a compelling interest to ensure uniformity, good order and discipline.... The Army has a further interest in the fair and proper administration of military justice. We agree with the military judge's conclusion that petitioner's wearing of the beard denigrates the dignity, order and decorum of the court martial and is disruptive under the current posture of the case.  Furthermore, in front of a military panel, it is undeniable that petitioner's failure to comply with Army grooming regulations without explanation of a suitable exception would cast him in a negative light. In this respect, the military judge has the authority ... to safeguard petitioner against the injection of prejudice into the court-martial process as a result, even where petitioner consents to that prejudice.

Two judges joined in an opinion dissenting in part, arguing that the court-martial judge should have merely ordered the government to ensure that the defendant was in proper uniform for the trial, leaving decisions about forced shaving or granting an exception to grooming regulations to the chain of command. The dissenters would not only grant the writ of prohibition invalidating the military judge's order, but would also disqualify the judge from further participation in the case because his action reasonably put into question his impartiality. Stars and Stripes reports on the decision.