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Constitutional Law

Army Judge Orders Forced Shave for Ft. Hood Massacre Suspect; Appeal Likely to Delay Military Trial

Posted Sep 7, 2012 12:17 PM CDT
By Martha Neil

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Setting the stage for further appellate review of whether the defendant accused in the Ft. Hood shooting massacre can continue to wear at a military trial, in violation of Army regulations, the beard he claims to have grown for religious reasons, a military judge Thursday ordered that Major Nidal Hasan must shave or be forcibly shaven.

However, that isn't expected to happen until the Army Criminal Court of Appeals and, potentially, the Court of Appeals for the Armed Forces, determines whether Colonel Gregory Gross was correct in ruling that the 41-year-old Hasan, who began growing the beard in June, hasn't proven he did so for religious reasons, reports Reuters.

Lawyers for Hasan, who is accused of killing 13 and injuring 32 in the November 2009 attack, say his belief is sincerely rooted in his Muslim faith and protected under the Religious Freedom Restoration Act of 1993, reports the New York Times (reg. req.).

They also point to Hasan's attempts to plead guilty as indicative of his intensified religious views and good faith in seeking an exemption for his beard. (Army rules prohibit a military court from accepting a defendant's guilty plea in a capital case, an Associated Press article notes.)

Prosecutors say the beard will interfere with witnesses' efforts to identify Hasan at trial and is an attempt on his part to identify himself with Islamic extremists. Under the Religious Freedom Restoration Act, the government may restrict an individual's religious exercise based on “compelling” need when doing so is the “least restrictive means” that can be employed, the Times article explains, and the judge said that standard had been met before he ordered the forced shaving.

One thing is certain: Arguing the issue on appeal is likely to delay Hasan's court martial, which was originally scheduled to begin in Texas last month, for some time.

"If you don't have the facts on your side, all you can do is engage in delay, delay, delay, and hope that the government will make some sort of a misstep that you can use on appeal," military law expert Jeffrey Addicott told Reuters. He is a former Army judge advocate.

Additional coverage:

ABAJournal.com: "Another Twist in Ft. Hood Shooting Spree Suspect Beard Dispute: Shaving Appeal Premature, Court Says"

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