This undated photo provided by the Bell County Sheriff's Department shows Maj. Nidal Hasan, an Army psychiatrist charged in the 2009 Fort Hood shooting rampage.

This undated photo provided by the Bell County Sheriff's Department shows Maj. Nidal Hasan, an Army psychiatrist charged in the 2009 Fort Hood shooting rampage. (Bell County Sheriff's Department)

FORT BELVOIR, Va. — By refusing to shave his “full, unkempt” beard, accused Fort Hood shooter Maj. Nidal Hasan is essentially going into court “wearing a sign that says ‘F-U judge,’ ” lawyers for the judge argued Thursday at an Army appeals hearing.

The U.S. Army Court of Criminal Appeals here is considering whether Hasan, who is charged with the Nov. 5, 2009, rampage at the Texas military base that left 13 people dead and 32 others wounded, can be forcibly shaved.

In defiance of grooming regulations, the Army psychiatrist has grown a beard and has appealed the trial judge’s order that he be involuntarily clean-shaven for his court martial. Hasan, an American-born Muslim, claims the beard is a sincere expression on his faith, which requires the facial hair.

The appeals court is also weighing whether the judge, Col. Gregory Gross, is biased and should be removed from the case.

Hasan’s lawyers argued that Gross exceeded his authority by ordering the involuntary shaving and by doing so cast doubt on his impartiality.

Gross has repeatedly held Hasan in contempt for refusing to shave, fined him and banned him from the courtroom.

All soldiers in the Army regardless of their religion are subject to the grooming rules, however a soldier can request an exception based on religious beliefs, which is rarely granted. The military is strict about grooming, maintaining it is part of good order and discipline.

Hasan was clean-shaven throughout his career. From confinement, he asked for and was denied a religious exemption in June.

The defense argued Thursday that Gross has no authority to order Hasan forcibly shaved and that it was unreasonable for Gross to rule that Hasan’s beard was a disruption.

“The fact of wearing a beard does not materially interfere with court proceedings,” Capt. Kristin McGrory argued.

The appeals court judges questioned whether Hasan’s lack of a proper uniform would prejudice the jury against him and cause an unfair trial.

The defense argued that an instruction to the jury to disregard Hasan’s beard would be sufficient to ward off prejudice.

However, judge Col. Steven Haight questioned whether it was a lose-lose situation. No instruction to the jury could set up a claim of prejudice in appeals. But would it be equally unfair to tell the panel they cannot consider the defendant’s flagrant violation of Army regulations?

The judges also questioned Gross’ lawyers about whether it was a poor choice to make the shaving order himself when Hasan’s chain of command could also enforce the regulations: Would it not be more impartial to simply instruct the prosecution to ensure Hasan was in proper uniform?

That way Gross wouldn’t “be the one with the razor in his hands,” presiding judge Col. William Kern said.

Gross’ lawyer, Capt. Kenneth Borgnino, argued that a military judge has the authority and necessity to control “what occurs within the four walls where he has purview,” and that Hasan’s beard was an offensive disruption.

Hasan’s court martial was scheduled to begin in August, but it has been postponed until the beard issue is resolved. Having heard from both sides in the hearing Thursday, the panel of judges is left to make its ruling. Either side could appeal the Army’s decision to the U.S. Court of Appeals for the Armed Forces and possibly all the way to the U.S. Supreme Court, which could delay the murder trial for years, military experts said.

Hasan could be sentenced to death if found guilty for what was the worst mass shooting at a military base.

mccloskeym@stripes.osd.milTwitter: @MegMcCloskey

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