John Galligan’s blog reports here that CAAF has issued an order resolving Major Hasan’s petition for extraordinary relief.

CAAF’s order is available here.  It provides, in relevant part:

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 the Government’s answer, it is ordered that the petition is denied without prejudice as premature because the military judge has not issued a definitive order for Petitioner to be forcibly shaved.

Should the military judge issue an order that Petitioner be forcibly shaved, Petitioner shall be afforded the opportunity to file a petition for extraordinary relief with the United States Army Court of Criminal Appeals prior to the execution of the order.  Also, if such an order is given, the military judge shall address those issues raised in this writ proceeding that he has not yet had an opportunity to address on the recording, including, among other matters:

(1)  whether the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (2006), applies in the context of this court-martial; and

(2)  if so, what compelling interest(s), if any, are implicated in the specific court-martial context presented and why forcible shaving is the least restrictive means of furthering the compelling governmental interest(s) including, if relevant, consideration as to why an instruction to the court members, if requested by Petitioner, is not the least restrictive means in the court-martial context.  See United States v. West, 12 C.M.A. 670, 674, 31 C.M.R. 256, 260 (1962).

Hasan v. Gross, __ M.J. __, No. 12-8032/AR (C.A.A.F. Aug. 27, 2012).

6 Responses to “CAAF issues order on Hasan petition for extraordinary relief”

  1. Babu says:

    Putting aside CAAF’s “guidance” to the MJ, this really ought to be a CA issue, not an MJ issue.  Either the CA cares and takes command action to have the beard removed, or the CA doesn’t care to do anything, in which case he has implicitly provided his approval.  If the MJ has heartburn with the CA’s decision, he could refuse to conduct any proceedings until the CA either provided affirmative approval for the accused to maintain the beard, or did something to fix it.  

    In theory, the CA is the one who created this court-martial, and he is the one responsible for having everything in place administratively for the MJ to do his job.

    It is surprising that Hasan has gone this long with having a beard without having any aspect of his chain of command making a formal decision to do something about it, either affirmatively or negatively.    

  2. Phil Cave says:

    Putting my SJA hat back on I would agree with Babu.  And I’m surprised it’s gotten this far in the pending GCM.

    This is no different than other collateral misconduct incident to court-martial.  The common one being the accused who tells his command he is going to see his lawyer, but doesn’t.  That’s a 107 at least.

    Give him a written order and 72 hours to comply.

    No compliance offer an NJP (he’ll refuse).

    Withdraw the NJP and give him another written order.

    Then SPCM.  I think you have demonstrated the giving of the order.  It does not suffer from an allegation that he’s being ordered to do something he’s already ordered to do (forget the case names), and you have evidence of willful disobedience.

    Once convicted and possibly sentenced for that, he’d also become subject to confinement regulations which also have rules about personal appearance and can be enforced, as I believe someone pointed out elsewhere per the confinement regulations.

    I can see some reasons why the SJA might advise against that route.  But personally I wouldn’t agree and recommend to stay out of it.

    Hasan may have legitimate religious reasons for his decision.  But it’s my understanding he’s not been granted an exception to policy.  At the moment the actions and resaons are tied up with his court-martial, are a distraction to that court-martial, and are bad PR through making the Army look ineffective in enforcing discipline.  Let him fight the law in a SPCM separate from the DP case.

    As an aside.  The British army now allows Sikhs to wear turbans in uniform.  Oh, and look they are wearing beards – on parade at Buckingham Palace no less.

  3. Dew_Process says:

    MEMO TO THE MEDIA:  Get copies of the “visitation logs” for the county jail that Hasan’s being housed in and see how many times and the frequencies of his mandated “command visitations” there have been.

    MEMO TO THE CONVENING AUTHORITY:  What kind of “chain-of-command” does Hasan have?  Does his Company Commander enforce discipline and Army Regulations or not?  How and why did this silly scenario get to this stage?  And by the way, this is what happens when you get “cheap” and use civilian pretrial confinement – they aren’t and won’t enforce military regulations.  If you are honestly serious about believing that this is a capital case where death is warranted, then grant the “exception to policy” for “religious” reasons and take this innane issue off of the litigation table — unless of course, you’re trying to beat the Gray post-trial record!

  4. Just Sayin' says:

    his religion didn’t require him to wear a beard when he went on his killing spree…

  5. Mike "No Man" Navarre says:

    Good point JS.  And as to the others, why on God’s/Allah’s or anyone else’s green earth would you as the government want to stop this train wreck from happening by forcing this guy to shave over the objection of the Defense Counsel?  Allow defense counsel to explain to the members why their client is sitting there looking like everyone’s 2012 concept of what a terrorist looks like and let the trial go on.  If pressed to say something say that due to the extraordinary circumstances of the case and the accused’s physical condition the governemnt has not objected to the defense request to have a beard.

    Also, unfortunate choice of words by CAAF, “prior to the execution of the order.”

  6. Michael A says:

    What is the authority for the convening authority or the command to force shave?

    Is it just command authority under 600-20? If so, does that mean that a squad leader or company commander can hold down and forcibly shave anySoldier under their command who refuses to shave?