AUSTIN, Texas — As the nation’s highest military appeals court ponders whether accused Fort Hood shooter Maj. Nidal Hasan should be allowed to keep his beard, legal experts say they don’t expect his court-martial to begin until January at the earliest.
The legal case against Hasan, who faces the death penalty on 13 counts of premeditated murder and 32 counts of attempted premeditated murder, has largely been on hold since August, when defense lawyers asked appellate judges to overturn military judge Col. Gregory Gross’s order that Hasan shave, or be shaved by force.
On Friday, government lawyers submitted what could be their final response to Hasan’s petition to the U.S. Court of Appeals for the Armed Forces. The court is expected to rule within a matter of weeks.
Hasan, an Army psychiatrist accused of opening fire on Fort Hood soldiers in Nov. 2009, began growing a beard about six months ago in violation of Army grooming regulations, and the issue has consumed pre-trial hearings ever since.
The fight over Hasan’s beard, which has caused several months of delays and infuriated family members of Fort Hood victims, revolves around a central legal question: whether Hasan grew the beard out of “sincerely” held religious conviction, which is protected by the Religious Freedom Restoration Act. Gross has questioned Hasan’s sincerity, ruling that it is “equally likely” that Hasan grew the beard as an act of defiance or to thwart in-court identification by witnesses.
But Hasan’s attorneys argue court logs show that in recent months Hasan has increased his daily prayer from three hours to four hours, an indication of his religious piety. They also argue that Hasan seeks to plead guilty (military rules prohibit a judge from accepting guilty pleas on charges that carry the death penalty) and thus would have no interest in thwarting in-court identification.
If the appeals court rules in Hasan’s favor, experts don’t expect the government to challenge the decision. “I’d be stunned if they sought any type of review for that,” said Geoffrey Corn, a military law expert at the South Texas College of Law.
But if the appeals court rules against Hasan, he could ask a federal judge to overturn the decision of the military court. While such an attempt, known as a “collateral attack,” has some precedent, Corn said he believes a federal judge would be reluctant to grant such a request. Corn said he expected any foray into the federal courts to be dispensed with quickly.
“I’m guessing the prosecutors are anticipating a start in mid to late January,” Corn said. “I’d be surprised if it started before the holidays.”
Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary’s University, said the lengthy delays have been a boon to defense attorneys, who had unsuccessfully sought more time to go over thousands of pages of discovery documents. “They are playing the system like an old violin,” he said. “You have to take your hat off to the defense team. The government is allowing them to walk all over them.”