United States v. Major Nidal M. Hasan ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc
Major NIDAL M. HASAN
United States Army, Petitioner
V.
THE UNITED STATES OF AMERICA,
and
Colonel GREGORY GROSS, Military Judge,
Respondents
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For Petitioner: Lieutenant Colonel Kris Poppe, JA; Captain Kristin McGrory, JA
(argued); Major Eric D. Noble, JA; Major Christopher E. Martin, JA; Captain
Kristin McGrory, JA; Lieutenant Colonel Kris Poppe, JA (on briefs & reply briefs);
Captain Ryan Coward, JA.
For Respondent: Captain Kenneth W. Borgnino, JA (argued); Lieutenant Colonel
Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain Kenneth W. Borgnino, JA
(on briefs).
18 October 2012
MEMORANDUM OPINION AND ACTION
ON PETITIONS FOR EXTRAORDINARY RELIEF
IN THE NATURE OF A WRIT OF PROHIBITION
AND A WRIT OF MANDAMUS
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
YOB, Senior Judge:
This matter involves two petitions for extraordinary relief, one in the nature
of a writ of prohibition and the other in the nature of a writ of mandamus. See 28
U.S.C. § 1651(a) (2006). The military judge in petitioner’s case has held him in
contempt for appearing with an unauthorized beard in court and has ordered that
petitioner be forcibly shaved. Petitioner seeks a writ of prohibition to prevent the
military judge from ordering the forcible shaving of his beard. Petitioner also seeks
a writ of mandamus vacating the military judge’s contempt findings and sentences,
and disqualifying the military judge from further proceedings in petitioner’s case.
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We summarily deny petitioner’s request for a writ of mandamus pertaining to
contempt. As for petitioner’s writ of prohibition, it merits discussion but no relief.
I
Petitioner is charged at court-martial with thirty-two specifications of
attempted premeditated murder and thirteen specifications of premeditated murder in
violation of Articles 80 and 118, Uniform Code of Military Justice, 10 U.S.C. §§
880, 918 (2006) [hereinafter UCMJ], which carry a maximum punishment of death.
On 8 June 2012, petitioner appeared in court for a pretrial hearing in his case
wearing a full beard in violation of Army uniform and grooming regulations. The
military judge found petitioner’s appearance to be a disruption and warned petitioner
to shave. Petitioner refused to shave, claiming that he was wearing a beard as an
exercise of his religious beliefs. Through command channels, petitioner thereafter
requested and was denied a religious accommodation by the Deputy Chief of Staff of
the Army, G-l. At which point, the military judge informed petitioner that he would
order petitioner be forcibly shaved if he did not voluntarily do so. Petitioner did not
shave his beard, appearing at several subsequent pretrial hearings wearing a beard.
In response, the military judge conducted several summary contempt proceedings in
accordance with Rules for Courts—Martial [hereinafter R.C.M.] 809, held petitioner
in contempt for failing to appear in court clean-shaven, and fined petitioner
$1,000.00 on each occasion.
On 6 August 2012, prior to the military judge issuing a formal order for
petitioner to be forcibly shaved, petitioner filed with our superior court, the Court of
Appeals for the Armed Forces, a writ seeking extraordinary relief from being
forcibly shaved. Petitioner’s writ was “denied without prejudice as premature
because the military judge has not issued a definitive order for Petitioner to be
forcibly shaved.” Hasan v. Gross, Docket No. 12-8032/AR (C.A.A.F. 27 Aug. 2012)
(order).
In anticipation ofjust such an order, petitioner filed a motion with the
military judge at trial on 5 September 2012, seeking relief from being forcibly
shaved. In support of this motion, petitioner submitted an affidavit that stated, inter
alia, “I believe that for me to shave my beard will cause me religious harm.” The
only other evidence petitioner submitted on the sincerity of these religious beliefs
was a written statement from an Imam, who is also a chaplain and member of
petitioner’s defense team, Major AH, which stated that petitioner’s desire to wear a
beard “is a matter of sincere, personal religious conviction.” Petitioner did not
testify in support of this motion but defense counsel did reference prior statements
petitioner made to the court.
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would have had to decide whether to forcibly shave petitioner. If the chain of
command declined to make a decision, the military judge could have stayed the case,
or held the government in contempt to compel a decision. If the chain of command
decided to forcibly shave petitioner and petitioner protested, he could certainly
pursue numerous avenues of complaint under military grievance processes, or an
action in civil court. These are more appropriate venues than a court-martial for
resolving challenges for accommodations of religious practices within the military
services that are unrelated to charged offenses. In addition, if a case could be made
that the actions of the chain of command were pretrial punishment, petitioner might
also have an opportunity to raise it in a court-martial under Article 13, Uniform
Court of Military Justice, 10 U.S.C. § 813 (2006). Why the military judge ignored
the option to compel the government to ensure petitioner was in proper uniform is
unknown. However, under the circumstances of this case, the military judge not
choosing to compel the government, but instead directing petitioner, at the request
of the government,* to be forcibly shaved, compromised his impartiality.
I distinguish this case from United States v. Gentile, 1 M.J. 69 (C.M.A.
1975), in which the order of a military judge to place an accused in handcuffs was
upheld when the accused indicated that he would disrobe if required to wear a
uniform at his court-martial. Unlike the case at hand, in Gentile there was no
indication of contentiousness between the defense and military judge that would
impact on perceptions of the reasonableness of the military judge’s actions.
Moreover, in Gentile, the misconduct of the accused would occur only in the
courtroom, thereby making the order from the military judge, as opposed to the
command, both logical and reasonable.
In the military justice system, the military judge wears a uniform and holds
authority as a leader as well as a judge. He must remain keenly aware of not only
the authorities he holds, but how orders executing those authorities are viewed and
options available to him, always keeping in mind perceptions regarding his
impartiality. The military judge utilized his contempt authority, which was a proper
method to try to compel petitioner to comply with uniform requirements. When
those attempts failed, he not only disregarded an avenue customarily used in
enforcing uniform requirements—utilizing the chain of command to enforce
compliance with uniform standards—but he also issued his order for the forcible
* The military judge’s ruling granted the Government Motion for Appropriate
Relief: Motion to Deny Religious Freedom Restoration Act Claim as
Unsubstantiated and to Order the Accused be Forcibly Shaved. (emphasis added).
11
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shaving at the behest of the government. Like removal, such an invasive order by
the military judge should only be utilized if there is a showing of material
interference with the conduct of the proceedings. C.f. R.C.M. 804 discussion;
Illinois v. Allen, 397 US. 337 (1970).
CONCLUSION
Without compelling the government to act, the military judge’s decision to
order the forced shaving at the government’s request was inappropriate as it
compromised his impartiality. As such, I would grant petitioner’s writ of
prohibition, invalidating the military judge’s order, and also disqualify the military
judge from further participation in the proceedings because he took an action that
reasonably put into question his impartiality. See R.C.M. 902(a); United States v.
Balistrieri, 779 F.2d 1191 (7th Cir. 1985).
FOR THE COURT: r
KCOLM H. SQUIRES, JR.
Clerk of Court
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On the same day, the government filed a separate motion with the military
judge seeking issuance of an order to forcibly shave petitioner. In its motion, the
government highlighted that petitioner was clean-shaven when he committed the
crimes of which he is charged, when he appeared at his Article 32, UCMJ, hearing,
and when he appeared at several pretrial hearings prior to 8 June 2012. The
government also submitted the transcript of a telephone interview petitioner initiated
with a reporter employed by Al-Jazeera, during which petitioner stated that he
contacted the reporter “to convey a message to the world” and apologized to the
mujahedeen “for participating in the illegal and immoral aggression against
Muslims.” The government argued that petitioner’s motive for appearing in court
with a beard was “to further defy the authority of his military superiors and this
Court and to serve as a manifestation of his allegiance to the Mujahedeen.”
Based on the evidence presented, the military judge applied the Religious
Freedom Restoration Act (RFRA) and ruled:
The accused has not demonstrated he is growing his beard at this
time because of a sincerely held religious belief, i.e., as part of
his exercise of religion. . . . It is not necessary for the Court to
analyze whether the accused is sincere in his expression that
growing a beard (generally) is part of his religious belief, because
the accused has not demonstrated growing a beard at this time is
an exercise of religion.
The military judge also made a finding that “it is equally likely the accused is
growing the beard at this time for purely secular reasons and is using his religious
beliefs as a cover.” The military judge further concluded that even if petitioner did
demonstrate he is wearing a beard at this time as part of his exercise of religion, the
Army possessed a compelling governmental interest in forcibly shaving petitioner
and that less restrictive means could not accomplish this compelling interest.
Accordingly, the military judge ordered petitioner to be clean—shaven for all
subsequent pretrial hearings and the trial, and if petitioner did not voluntarily shave,
for the government to forcibly shave him prior to all subsequent pretrial hearings
and prior to trial.
Petitioner then filed the instant writs to vacate the contempt orders and
prevent the government from forcibly shaving him pursuant to the military judge’s
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order.1 This court consolidated the petitions for extraordinary relief, specified
additional issues,2 and heard oral argument sitting en banc.
1 In his Petition for Extraordinary Relief in the Nature of a Writ of Prohibition,
petitioner raised the following issue:
WHETHER THE MILITARY JUDGE HAS THE AUTHORITY TO
ORDER THE FORCBILE [SIC] SHAVING OF PETITIONER WHEN
SUCH AN ORDER VIOLATES PETITIONER’S RIGHTS UNDER THE
RELIGIOUS FREEDOM RESTORATION ACT.
In his Petition for Extraordinary Relief in the Nature of a Writ of Mandamus,
petitioner raised the following issues:
I. WHETHER THE MILITARY JUDGE VIOLATED PETITIONER’S
FIFTH AMENDMENT DUE PROCESS RIGHTS BY HOLDING
SUMMARY CONTEMPT PROCEEDINGS.
II. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY ENTERING MULTIPLE CONTEMPT FINDINGS AND
PUNISHING PETITIONER REPEATEDLY FOR THE SAME ACT OF
RELIGIOUS EXERCISE.
III. WHETHER THE MILITARY JUDGE ERRED WHEN HE FOUND
THE PETITIONER GUILTY OF CONTEMPT AFTER THE
PETITIONER HAD ASSERTED THE RELIGIOUS FREEDOM
RESTORATION ACT AS A DEFENSE.
IV. WHETHER THE MILITARY JUDGE FAILED TO DISQUALIFY
HIMSELF AS THE JUDGE PRESIDING OVER THE CONTEMPT
PROCEEDINGS.
V. WHETHER [RULE FOR COURTS-MARTIAL] 809
UNCONSTITUTIONALLY VIOLATED THE PETITIONER’S RIGHT
TO DUE PROCESS.
2 This court specified the following additional issues for oral argument:
(continued . . .
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II
Petitioner’s claim that he cannot be forcibly shaved is before this court in a
Petition for Extraordinary Relief in the Nature of a Writ of Prohibition. Pursuant to
the All Writs Act, military Courts of Criminal Appeals are empowered to issue “all
writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651(a) (2006). See United States
v. Denedo, 556 U.S. 904, 911 (2009), aff’g sub nom. Denedo v. United States, 66
M.J. 114 (C.A.A.F. 2008); Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App.
2012), pet. denied, 71 M.J. 300 (C.A.A.F. 2012). Under the circumstances
presented, it is appropriate for this court to consider whether a writ of prohibition
should issue to limit the military judge’s authority to order the government to
forcibly shave petitioner prior to his appearing at court-martial hearings. We
conclude however that the petition fails on its merits.
(. . . continued)
I. REGARDLESS OF THE APPLICABILITY OF THE RELIGIOUS
FREEDOM RESTORATION ACT, 42 U.S.C. § 2000bb (2006),
WHETHER THE MILITARY JUDGE’S ORDER TO PETITIONER TO
COMPLY WITH A GROOMING STANDARD AND SUBSEQUENT
FORCED SHAVING ORDER EXCEEDED THE MILITARY JUDGE’S
AUTHORITY OR WAS OTHERWISE INAPPROPRIATE IN
ACCORDANCE WITH ARMY REGULATION 600-20 AND RULE
FOR COURTS-MARTIAL 801.
II. IF THE MILITARY JUDGE’S CONDUCT IN ORDERING THE
PETITIONER TO COMPLY WITH A GROOMING STANDARD
EXCEEDED HIS AUTHORITY OR WAS OTHERWISE
INAPPROPRIATE, WOULD THE CONTEMPT PROCEEDINGS
BASED ON [PETITIONER]’S FAILURE TO COMPLY WITH THE
MILITARY JUDGE’S ORDER BE INVALIDATED.
III. IF THE MILITARY JUDGE’S CONDUCT IN ORDERING
PETITIONER TO COMPLY WITH A GROOMING STANDARD OR
SUBSEQUENT FORCIBLE SHAVING ORDER EXCEEDED THE
MILITARY JUDGE’S AUTHORITY OR WAS OTHERWISE
INAPPROPRIATE, SHOULD THE MILITARY JUDGE BE
DISQUALIFIED FROM FURTHER PARTICIPATION IN
PROCEEDINGS AGAINST THE PETITIONER.
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Army regulations mandate all male soldiers be clean-shaven. Army Reg. 670-
1, Wear and Appearance of Army Uniforms and Insignia [hereinafter AR 670-1],
para. 1-8.a.(2)(c) (3 Feb. 2005) (Revised, 11 May 2012) (“Males will keep their face
clean-shaven when in uniform or in civilian clothes on duty.”); Army Reg. 600-20,
Army Command Policy [hereinafter AR 600-20], para. 5-6.g.(4)(g) (18 Mar. 2008)
(Revised, 20 Sep. 2012) (stating that absent commander’s approval, “[t]he Army
does not accommodate exceptions to personal grooming standards for religious
reasons” . In this case, there is a direct conflict between the Army’s uniform
grooming regulations and petitioner’s asserted religious beliefs, which purportedly
require him to wear a beard. The Religious Freedom Restoration Act directs that the
federal government “shall not substantially burden a person’s exercise of religion”
and provides a claim or defense against any such burden on religious exercise.
42 U.S.C. § 2000bb-1 (2006). Here, petitioner’s claim is based on the military
judge’s denial of his motion to wear a beard during his court-martial and the
corresponding order that petitioner be forcibly shaved. We review de novo the
military judge’s “ultimate determination as to whether the RFRA has been violated.”
United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996). Factual findings
underlying this legal conclusion, to include the sincerity and religiosity of
petitioner’s beliefs, are reviewed for clear error. Id; United States v. Seeger, 380
US. 163, 185 (1965).
When asserted as a claim or defense, “a [petitioner] alleging a violation of
RFRA must demonstrate that his right to the free exercise of religion has been
substantially burdened.” Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996). This
demonstration must be by a preponderance of the evidence. Meyers, 95 F.3d at
1482. “[A] rule imposes a substantial burden on the free exercise of religion if it
prohibits a practice that is both ‘sincerely held’ by and ‘rooted in [the] religious
belief[s]’ of the party asserting the claim or defense.” United States v. Ali, 682 F.3d
705, 710 (8th Cir. 2012) (alteration in original). Thus, RFRA requires a
determination of “whether the beliefs professed by [petitioner] are sincerely held -
and whether they are, in his own scheme of things, religious.” Seeger, 380 US. at
165. See Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984). In this case, the
military judge considered evidence indicating that petitioner’s motivation for
appearing in court unshaven was based on his sincere religious beliefs, as well as
other evidence that petitioner had secular reasons to be unshaven. The military
judge’s factual findings that petitioner was not wearing a beard at court-martial
hearings at this time as a matter of sincere religious belief were not clearly
erroneous. Therefore, he did not err by denying petitioner’s RFRA claim.
We further conclude that, even if petitioner had succeeded in demonstrating
his wearing a beard in court was based on his sincere religious beliefs, compelling
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interests justify the military judge’s order and no lesser restrictive means are
available to accomplish these interests. Had petitioner demonstrated that he was
wearing a beard as a matter of religious conviction, the military judge’s order to
forcibly shave petitioner would substantially burden the free exercise of his religion.
However, RFRA provides an exception, allowing the federal government to
substantially burden the free exercise of religion, “if it demonstrates that application
of the burden to the person—(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” § 2000bb-1(b). See Gonzales v. 0 Centro Espirita
Beneficente Uniao d0 Vegetal, 546 US. 418, 424 (2006).
The Army has a compelling interest to ensure uniformity, good order, and
discipline. “The Army is a uniformed service where discipline is judged, in part, by
the manner in which a soldier wears a prescribed uniform, as well as by the
individual’s personal appearance. Therefore, a neat and well-groomed appearance
by all soldiers is fundamental to the Army and contributes to building the pride and
eSpirit essential to an effective military force.” AR 670-1, para. 1-7.a. In this
particular case, the military judge properly recognized and gave significant
deference to the decision of the Deputy Chief of Staff of the Army, G-l, to deny
petitioner’s request to wear a beard because it “would have an adverse impact on
military necessity, particularly with regard to discipline, unit cohesion, and morale.”
See Goldman v. Weinberger, 475 US. 503, 507—08 (1986).
The Army has a further interest in the fair and proper administration of
military justice. We agree with the military judge’s conclusion that petitioner’s
wearing of the beard denigrates the dignity, order, and decorum of the court-martial
and is disruptive under the current posture ofthe case. Furthermore, in front of a
military panel, it is undeniable that petitioner’s failure to comply with Army
grooming regulations without explanation of a suitable exception would cast him in
a negative light. In this reSpect, the military judge has the authority to prescribe the
proper uniform for trial, R.C.M. 801(a)(1), 804(c)(1), and the obligation to
safeguard petitioner against the injection of prejudice into the court-martial process
as a result, even where petitioner consents to that prejudice.3 In no case is the need
3 See R.C.M. 804(c)(1) discussion (“This subsection recognizes the right, as well as
the obligation, of an accused servicemember to present a good military appearance at
trial. An accused servicemember who refuses to present a proper military
appearance before a court-martial may be compelled to do 50.”); United States v.
Gentile, 1 M.J. 69 (C.M.A. 1975) (“[W]e perceive no rational basis for concluding
(continued . . .)
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to exclude matters prejudicial to the accused more compelling than one in which the
accused faces a potential sentence to death.
Finally, in this situation, there are no lesser restrictive means available apart
from the military judge’s order. Petitioner suggests that an instruction to the panel
would be sufficient. In light of the compelling governmental interests under these
circumstances, we are unconvinced that an instruction, in the absence of a legitimate
exception permitting petitioner to wear a beard in court, will adequately address the
interests of both parties in this case.
111
In conclusion, we hold that petitioner is not entitled to extraordinary relief in
the nature of a writ of prohibition. The military judge did not commit clear error in
determining petitioner’s desire to appear unshaven in court was not based on a
sincerely held religious belief at this time. Further, even if petitioner had succeeded
in demonstrating his wearing a beard in court was based on his sincere religious
beliefs, compelling interests justify the military judge’s order and no lesser
restrictive means are available to accomplish these interests. Accordingly, the
(. . . continued)
that the military judge must ‘take the dare,’ running the risk that the accused will
further inflame the jury to his own detriment.”); United States v. West, 12
U.S.C.M.A. 670, 674, 31 C.M.R. 256, 260 (1962) (“It does not require citation of
authority to note the difference in the impression made upon the court members by a
clean-shaven, well-dressed young Marine, wearing his decorations and the insignia
of his grade, and that created by a whiskery defendant clad in an ill-pressed prison
garment decorated only with splotches of yellow paint”); United States v. Taylor,
31 MJ. 905, 906 (A.F.C.M.R. 1990) (“It cannot be denied, we think, that the sight
of the accused at trial, as he is arraigned, as he testifies . . . as he confers with
counsel, and as he stands to be sentenced, is part of the ‘silent evidence’ in the case.
Accordingly, it is but part of a full and fair proceeding that he be entitled to stand
before the court—martial as a sailor should, neat, clean and sharp, in the uniform-of-
the-day, complete with merited insignia, ribbons and decorations. Anything less
must be presumed to be prejudicial pro tanto. This presumption contemplates that
nothing is more inflammatory to an officer of the military than to see a member of
his service ‘out of uniform’ or wearing a soiled or ill-fitting uniform.” (quoting
United States v. Whitehead, 27 C.M.R. 875, 876 (N.B.R. 1959))).
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Petition for Extraordinary Relief in the Nature of a Writ of Prohibition and the
Petition for Extraordinary Relief in the Nature of a Writ of Mandamus are DENIED.
Senior Judge COOK, Judge GALLAGHER, Judge HAIGHT, and Judge
MARTIN concur.
Chief Judge AYRES, Judge ALDYKIEWICZ, and Judge KRAUSS took no
part in the decision of this case.
KERN, Senior Judge, with whom Judge BURTON joins, concurring in part and
dissenting in part and in the result:
I concur with my colleagues in denying the writ of mandamus; however, I
dissent on the disposition of the writ of prohibition because the military judge in
this case had an option to compel the government to ensure petitioner was in proper
uniform—either clean-shaven or with an exception to wear a beard. The military
judge instead chose to enforce the uniform standards himself, and in doing so
compromised his impartiality under the circumstances of this case. Accordingly, I
would answer Specified Issue III in the affirmative.
BACKGROUND
To resolve the issue concerning the propriety of the military judge’s forcible
shaving order, it is important to consider the background and circumstances of this
case. In apparent disobedience of Army grooming regulations, petitioner appeared
at several pretrial court-martial hearings with a beard. Because petitioner was out of
uniform, the military judge ordered him removed from the courtroom, but he was
allowed to participate in the hearing remotely via closed circuit television. The
military judge also ordered petitioner to comply with Army uniform standards—to
be clean shaven or receive an exception from the Army to wear a beard. The
military judge based his order on his decision that petitioner’s non-compliance with
Army uniform standards amounted to a disruption of the court-martial. The military
judge also indicated that if petitioner received a valid exception to the Army
uniform regulation, he would have no problem with petitioner wearing the beard in
the courtroom. When petitioner showed up at subsequent hearings with a beard, the
military judge held him in contempt, fined him $1000.00 each time, and ordered him
removed from the courtroom. The military judge found that removing petitioner for
preliminary hearings was appropriate; however, as the case moved toward the
eventual trial, the military judge indicated that if petitioner did not receive an
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exception from the Army to wear a beard, he would order petitioner to be forcibly
shaved.
Petitioner submitted to his unit commander a request for a religious
accommodation exception to Army grooming regulations. See Army Reg. 670—1,
Wear and Appearance of Army Uniforms and Insignia [hereinafter AR 670—1], para.
1—8.a.(2)(c) (3 Feb. 2005) (Revised, 11 May 2012); Army Reg. 600—20, Army
Command Policy [hereinafter AR 600-20], para. 5-6.g.(4)(h) (18 Mar. 2008)
(Revised, 20 Sep. 2012). Petitioner’s request was denied and, his unit commander
ordered petitioner to immediately comply with Army grooming standards. There is
no indication the command took any efforts to enforce this order on its own.
The defense team also filed a trial motion and appellate writ for the military
judge to recuse himself on the basis of bias for a myriad of reasons, to include the
military judge’s indication that he would order petitioner to be forcib1y shaved.
Hasan v. United States, ARMY MISC 20120667 (Army Ct. Crim. App. 10 July
2012) (order). From the interactions between the military judge and defense team in
the record of trial prior to the military judge ordering the forced shaving of
petitioner, it is readily apparent that the relationship between the military judge and
the defense was very contentious. It is with the entire backdrop set out above that I
view the subsequent decision by the military judge to order the forcible shaving of
petitioner.
LAW AND DISCUSSION
Although there are overlapping authorities between an accused’s chain of
command and a military judge when an accused is participating in a court-martial
proceeding, the command retains primary responsibility for enforcement of uniform
and grooming standards. See AR 600—20; Dep’t of Def. Instr. 1300.17,
Accommodation of Religious Practices Within the Military Services (10 Feb. 2009)
[hereinafter DODI 1300.17]. It is also customary in court—martial proceedings, when
a uniform deficiency is identified, for the military judge to direct the trial counsel,
as the government representative, to ensure an accused is in the proper uniform. See
Rules for Courts—Martial [hereinafter R.C.M.] 804(e)(1) (stating “upon request, the
accused’s commander shall render such assistance as may be reasonably necessary to
ensure that the accused is properly attired”).
At the time the military judge ordered petitioner to be forcibly shaved, he had
the option of requiring the government to ensure petitioner was in the proper
uniform, whether that was clean-shaven or with an exception to the regulation. If
the military judge had chosen this option, the command and not the military judge
10