CAAF just issued the following order in the caes of Major Nidal Hasan:

On consideration of the petition for extraordinary relief in the nature of a writ of prohibition to prevent the military judge from ordering the forcible shaving of Petitioner’s facial hair, and Petitioner’s motion for a stay of proceedings, it is, by the Court, this 15th day of August, 2012,

ORDERED:

That said motion for a stay of proceedings is hereby granted, pending further order of the Court.

Respondent will file an answer to said petition on or before 12:00 p.m. EDT, August 22, 2012.

Hasan v. Gross, __ M.J. __, No. 12-8032/AR (C.A.A.F. Aug. 15, 2012).

16 Responses to “BREAKING NEWS: CAAF stays Hasan trial over forced shaving issue”

  1. Dew_Process says:

    Very interesting!  Does anyone know the basis for the Writ?  1st Amendment issue would seem likely, but ultimately I doubt if it will get much traction.

  2. West Point Quaker says:

    I think the writ is based primarily on the Religious Freedom Restoration Act at 42 USC 2000bb. 

  3. Publius-Publicola says:

    If the writ is seeking to prevent the forcible shaving of Maj Hasan, then why stay the court-martial proceedings in their entirety to consider whether to issue the writ or not?  Why not just stay the trial judge from ordering the forcible shaving of Maj Hasan until CAAF considers the issue?  Surely the entire trial does not need to be put on hold for this.  After all, the trial is scheduled to start next week and has been in the making for two years or so.  Furthermore, why order Col Gross in his individual capacity to respond (as I believe he is the sole respondent, not the United States)?  Why not order appellate government to respond on his behalf? 

  4. WestCoastDefense says:

    Given that the Hassan beard story is being covered by national news outlets I wonder if CAAF’s action was spurred by wanting to avoid creating international news headlines about a muslim man (even one accused of mass murder) having had his beard forcibly shaved.  In parts of the AOR many men would probably prefer waterboarding to their beard being forcibly shaved. I could see how there might be concern about cultural sensitivities and that this could be used as recruitment tool.

  5. Dwight Sullivan says:

    Actually, Publius Publicola, the order was addressed to one “Borgnino” as counsel for respondent.  I believe that woudl be Captain Kenneth W. Borgnino of the Army Government Appellate Division.

  6. stewie says:

    I understand and agree wholeheartedly with the concept of no special favors, and proper respect for the court and the uniform.
     
    But every once in awhile, a situation comes along that creates an exception.

  7. Babu says:

    I defer to John Bender:

  8. Publius-Publicola says:

    Mr Sullivan, appears to me that Col Gross is the only respondent on the order.  If the United States wishes to move to substitute for him, then I suppose it can.  But the United States does not appear to be a party yet.  And frankly, if you were the United States, would you want to defend this forcible shaving order?  Let the Major appear in court with a beard (can’t see this as disruptive in any way) and give the members an appropriate instruction that the Major has opted not to appear in the proper uniform.  Then there is no issue and the trial continues.    

  9. Cloudesley Shovell says:

    Well, this ought to set up an interesting clash between 42 USC 2000bb and 10 USC 774.  I wonder whether Zumwalt-era beards will come up in argument.

  10. Mike "No Man" Navarre says:

    If an attorney from Army GAD files a brief supporting the military judge’s order, Big Army should send one of Hasan’s colleagues to GAD to examine all of their heads.

  11. WestCoastDefense says:

    Since a stay has been ordered anyway if I were a prosecutor I’d be tempted to tack on an Article 92 dereliction spec to the charge sheet for failing to follow instructions to comply with Army uniform regulations.  I know it triggers another 32 which is unlikely to be waived but, since it’s been delayed anyway with this stay, assuming he’s not going to shave the beard himself, as a prosecutor I would relish the chance to have, on the members’ charge sheet, a visible reminder to the panel that suggests Hassan, as he sits in judgment, not only has no remorse for unspeakable acts but he’s actively breaking the law during his court-martial.  Couldn’t comment in trial on the beard (uncharged misconduct) but he’d be sitting right there – one wouldn’t need to say a word …and under such a scenario we avoid the problem posed by the Breakfast Club anarchy clip.

  12. Justin says:

    Would the beard even merit “comment in trial,” to earn the members’ attention?  If this panel of field-grade officers does not notice that the accused is out of uniform during his murder trial, then I suspect the Government has larger problems.

  13. Bill C says:

    I like Judge Gross, but I just don’t understand this.  This is a unique case. The chances of not getting the DP are pretty small.  So tell him “if you insist on showing up out of uniform, it is to your detriment” and leave it at that.  We have people testify in the wrong uniform all the time and while not directly analogous, I would not make a stink out of it.

  14. Kim Jong-Un says:

    As is obvious to everyone, the judge is likely (and I think reasonably) worried about how the beard might prejudice Hassan during the merits and sentencing.  Putting myself in the judge’s shoes, I can see him foreseeing some appellate defense attorney highlighting this prejudice in Hassan’s inevitable appeal. 

    I understand that Hassan can likely waive the issue on the record, but he may still have an IAC claim or some other claim, even with the waiver.  It’s a death penalty case, someone is going to throw every possible appellate issue at this case.  In my opinion, there’s greater prejudice, and thus a better appellate issue, if he is allowed to show up in court with his beard.  Although his forcible shaving may raise some sort of civil rights violation, I don’t think it can be spun into prejudice on appeal.

  15. Mike "No Man" Navarre says:

    As far as IAC goes, clients are entitled to make decisions about their case . . . even stupid ones . . . so long as they are adequatley informed of the reasonably foreseeable consequences. That’s not exactly a quote of Strickland or even Denedo.

  16. Bill C says:

    Kim Jong: It is obvious you have switched sides.