Appeals court doesn't say whether Fort Hood shooting suspect can be forcibly shaved
By JEREMY SCHWARTZ | Austin American-Statesman | Published: August 28, 2012
A military appeals court reserved judgment Monday on whether a Fort Hood military judge can order Maj. Nidal Hasan forcibly shaved, a decision that could further delay Hasan's court-martial, which had been scheduled to begin Aug. 20.
The U.S. Court of Appeals for the Armed Forces said Hasan's appeal was "premature" because trial judge Col. Gregory Gross had yet to formally make the shaving order.
On Monday, the appeals court lifted its stay of the court-martial, but the proceedings probably will be delayed again if Gross formally orders Hasan shaved.
Gross has indicated on numerous occasions that he will order Hasan shaved before his court-martial begins. Hasan's attorneys, arguing that Gross' decision would violate Hasan's freedom of religion, filed an appeal earlier this month.
Hasan, who faces the death penalty on 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the 2009 mass shooting at Fort Hood, grew a beard in June, citing his Muslim faith. Gross called the beard, which violates Army grooming regulations, a disruption and ordered Hasan to watch court proceedings via a video feed from a trailer next to the Fort Hood courtroom.
If Gross formally orders that Hasan be shaved, Hasan could first file an appeal with the Army Court of Criminal Appeals, a lower appeals court. After that court rules, the issue could return to the U.S. Court of Appeals for the Armed Forces, but it's unclear how long it will take to get a final ruling on the beard.
The appeals court issued an indefinite stay of proceedings Aug. 15 because of the beard issue.
The court on Monday also ordered Gross, if he does order the forcible shaving of Hasan, to address whether the Religious Freedom Restoration Act applies to the court-martial and to spell out "why forcible shaving is the least restrictive means of furthering the compelling governmental interest."
Geoffrey Corn, a military law expert at South Texas College of Law, said the appeals court wants Gross to create a larger record of his reasoning. "The overall tenor is in favor of Hasan," Corn said. "But it's not a clear win for anyone."