The Army Court of Criminal Appeals today affirmed a military judge’s order that MAJ Nidal Hasan can be forcibly shaved before appearing in a military courtroom. Here is the en banc, but unpublished, opinion of the court in Hasan v. United States et al, Docket Nos. Army Misc 20120876 and 20120877 (A. Ct. Crim. App. Oct. 18, 2012):
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 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
Four judges concurred in the opinion of Senior Judge Yob (Cook, Gallagher, Haight, and Martin), three judges took no part in the decision (Ayres, Aldykiewicz, and Kraus) and two judges dissented (Kern and Burton).
The dissent would have actually disqualified the military judge for wading into this mess, writing:
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 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. . . .
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.
[Sorry for earlier versions, technical difficulties]