A military appeals court will hear arguments next week before deciding if an Army psychiatrist charged in the Fort Hood shooting rampage can be forcibly shaved for his murder trial.
The U.S. Army Court of Criminal Appeals, in a ruling issued late Tuesday, said it also will consider whether the trial judge should be removed from Maj. Nidal Hasan's case. Defense attorneys claim the judge, Col. Gregory Gross, exceeded his authority by issuing the shaving order, and also want the court to overturn the six contempt of court rulings issued against Hasan for having a beard at pretrial hearings this summer.
Hasan says he grew a beard because his Muslim faith requires it, despite an Army ban on beards. Gross has said Hasan's facial hair is a disruption and that defense attorneys have not proven that he is growing it for sincere religious reasons.
Hasan appealed the judge's order that he be clean-shaven or forcibly shaved before his court-martial, which was to begin in August but is on hold over the beard issue.
Hasan, 42, faces the death penalty or life in prison without parole if convicted in the November 2009 shootings that killed 13 people and wounded more than two dozen others at the Texas Army post, about 125 miles southwest of Fort Worth.
The appeals court at Fort Belvoir, Va., will hear from prosecutors and defense attorneys Oct. 11. After the court rules, the decision can be appealed to the U.S. Court of Appeals for the Armed Forces.
Hasan's attorneys say the judge's order violates his rights under the federal Religious Freedom Restoration Act. Hasan believes that having a beard "is a necessary requirement when facing death," his attorneys wrote in one of their appeals filed last month.
"Such an order (to be forcibly shaved) direct violates (Hasan's) right to practice his faith without substantial governmental intrusion," defense attorneys wrote in the appeal. "Further, the military judge does not have the authority ... to enforce such an order. This is especially true where (Hasan's) actions are a direct result of his sincerely held religious beliefs and do not constitute a disruption to the trial proceedings."
But the government, in its response to Hasan's appeal, said the beard violates Army regulations and Gross has the right to hold him in contempt of court. Gross also has said in court that he is not personally offended by Hasan's beard, so the judge is not biased and should not be removed from the case, according to the government's response filed with the appeals court last week.
Hearing arguments instead of making a ruling based on written appeals and responses is unusual for a court, but the U.S. Army Court of Criminal Appeals seems to be using extreme caution because this is a high-profile case, said Jeff Addicott, director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio.
"Having oral arguments shows transparency, but it's legal theater," Addicott, who is not involved in the Hasan case, said Wednesday. "Anybody can see that this defendant is using this court as a delaying tactic ... and at the expense of justice, because the case has dragged on for too long."