Here is a link to the MAJ Hasan petition to CAAF to prohibit the military judge from ordering that his beard be forcibly shaved for trial.  Here is LA Times coverage of the same (though I don’t vouch for their summary of the stay order).

13 Responses to “Hasan CAAF Petition”

  1. Phil Cave says:

    Wouldn’t it be nice if we could go to PACER or something similar to view this stuff, at trial too.

  2. Cloudesley Shovell says:

    Phil:
    At least one of the service appellate gov’t divisions has been pushing at the idea of implementing PACER at the military appellate courts.  As far as I know the courts are open to it, but as always it’s a question of which pot of money and who administers it.  I also recall hearing that there was no small amount of institutional bureaucratic resistance based upon not-invented-here (though I may be wrong about that).
    As far as I know the effort is still ongoing.
    CS

  3. OPLAW-LCDR says:

    Maybe I’ve been out in the sun too long (a distinct possibility).  Someone correct me if I am wrong on this:  the Petition states clearly that the Accused’s Commanding Officer ordered him to be in compliance with uniform regulations, and he refused.  With that in mind, is there some reason:  A) The CO or Convening Authority cannot order him shaved independently of the court-martial and CAAF’s jurisdiction; and B) Why he cannot be further charged with multiple Article 92’s?  I’m sure I’m missing something here.  On a related note – I can’t see how CAAF could let this stand.  If they do, then Katie bar the door.  I strongly suspect that CAAF will say they have no right to control uniform regulations.  After all, that power is reserved to Congress in Article I.

  4. Bridget Wilson says:

    I doubt that the RFRA claim will stand. I think I did one of the first RFRA claims in a GCM in 2006. It did not succeed but appeared to help me get a deal for the client. Then in 2008, CAAF issued US v Webster which seriously limits RFRA claims in the military, at least as a CM defense. All that said, let the guy wear his beard. The real detriment is to him. Honestly, if I had the client accused of being a religiously motivated murderer of many in the manner he is, I would want him clean shaven and STRAC. How to make a panel even more unhappy with you?  Wear that beard. I assume everyone on the board here wants clients who are spotlessly clean and military at trial. Tough client control issues.

  5. Jim Richardson says:

    Seems to me that this case is governed by Golman v. Weinberger, particularly Justice Stevens’ concurring opinion.  This is a rule of uniform application, and the services should not deviate from it.

  6. Tami says:

    This is ridiculous.  Hasan was always a “devout” Muslim, but maintained a shaved face until a couple of months ago.  I have no doubt he’s had a few premonitions of death before he started growing his beard, in violation of AR 670-1, yet he didn’t request exception to policy before.  There are many devout Muslims in the military, yet they shave.  Soldiers can be involuntarily immunized, why shouldn’t Hasan be involuntarily shaved?  I’m with COL Gross on this one.  I hope CAAF denies this one quickly, let’s get on with this case.  It’s been almost 3 years!

  7. Dew_Process says:

    I don’t want to turn this into a death penalty debate thread, but if you’ve read the CAAF Writ Petition, it demonstrates unfortunately, that a significant appellate issue [not this 1st Amendment one] has already “infected” the trial process, i.e., conducting proceedings where the defendant is functionally absent and unable to communicate with his counsel.  Strange how the technology is available if there’s a “vulnerable” child witness, but not here.

    There is a simple solution, albeit probably not politically acceptable to the Army.  Have the U.S. Attorney’s office for whatever district Fort Hood is in, indict him for the same crimes.  The resources of the DoJ would be available to prosecute him, and no doubt the Federal Defender’s Death Penalty unit would be able to provide assistance and resources.  The venire in that District isn’t going to be any more favorable than a military panel to Hassan.  Especially after they prosecuted the Fort Hood “Bomber” in federal court there.
    http://abcnews.go.com/Blotter/naser-jaon-abdo-ft-hood-plotter-life-prison/story?id=16978363

    Just my 2 cents.

  8. stewie says:

    How can the same sovereign indict him for charges it has already brought under the military system?

  9. Zachary Spilman says:

    Same “crimes,” different “offenses.” Title 18 vs. Title 10. No problem.

  10. Dew_Process says:

    To add to ZS’s correct response, the “same sovereign” theory would only preclude forcing a defendant to stand trial twice, especially if jeopardy hasn’t attached.  Just as if it weren’t a political football, we could try the dudes at GTMO in federal court vs. a military commission.

  11. Dwight Sullivan says:

    Supreme Court case law precludes any argument that double jeopardy doesn’t apply where one criminal act could be charged under two different criminal codes both emanating from the authority of the United States government.

    “[T]he cases holding that the same acts committed in a state of the Union may constitute an offense against the United States and also a distinct offense against the state do not apply here, where the two tribunals that tried the accused exert all their powers under and by authority of the same government,-that of the United States.” Grafton v. United States, 206 U.S. 333, 354-55 (1907).

    The Court continued:  “It may be difficult at times to determine whether the offense for which an officer or soldier is being tried is, in every substantial respect, the same offense for which he had been previously tried. We will not therefore attempt to formulate any rule by which every conceivable case must be solved. But, passing by all other questions discussed by counsel, or which might arise on the record, and restricting our decision to the above question of double jeopardy, we adjudge that, consistently with the above act of 1902, and for the reasons stated, the plaintiff in error, a soldier in the Army, having been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for the same offense in a civil court exercising authority in that territory. This is sufficient to dispose of the present case.”  Id. at 355.

    As Chief Judge Everett observed in an opinion of the court:    “trial by a court-martial is barred by the Code only if the accused has already been tried in a court which derives its authority from the Federal Government. Grafton v. United States, 206 U.S. 333 (1907); cf. Waller v. Florida, 397 U.S. 387 (1970). But a trial by court-martial is not barred if the earlier trial was by a state or foreign court.”  United States v. Stokes, 12 M.J. 229, 231 (C.M.A. 1982).  Grafton establishes that the bar runs in the other direction as well.  If jeopardy has attached as a result of trial by court-martial, that jeopardy bar applies to other federal tribunals.
       
    So it’s clear that Major Hasan couldn’t be tried for the same homicides at Fort Hood both by court-martial and in U.S. district court even if the crimes were alleged to have violated different portions of the United States Code.  That said, there wouldn’t appear to be any jeopardy bar to trying him in U.S. district court today, since jeopardy does not appear to have yet attached in the court-martial proceedings.  But there is no way that’s going to happen and it shouldn’t happen.  Major Hasan’s offenses directly affected the United States military and the very purpose of the military justice system is to deal with offenses like these. 

  12. stewie says:

    glad to know I wasn’t wrong, not because I need to be right, but because it would be horrible if one could simply say “different title” and thus prosecute someone twice under Federal law for the same acts.
    I do understand that theoretically you could have two sets of charges going simultaneously, but whichever one had jeopardy attach second would be a waste of time and money since it would be moot once the first one had jeopardy attach.

  13. Anonymous Air Force Senior Defense Counsel with the initials NM says:

    Wouldn’t RCM 801 sort of make this an open and shut case?  The MJ can control the uniform for the court and remove the accused if he’s disrusptive.  Seems simple to me…