U.S. soldiers transport a wounded comrade at Ft. Hood, Texas, on Nov. 5,… (U.S. Army )
FT. HOOD, Texas — A military appeals court Wednesday stayed the trial of accused Ft. Hood shooter Maj. Nidal Malik Hasan after judges found that forcibly shaving Hasan, as a military judge had ordered, would violate his religious freedom.
The United States Court of Appeals for the Armed Forces, a panel of four civilian judges appointed by the president and based in Washington, issued the order at the same time Hasan was appearing in court at the sprawling Army base in central Texas. The appeals panel, the highest court in the military system, is the equivalent of a federal Circuit Court of Appeal.
Hasan, 41, a U.S. Muslim born to Palestinian parents, appeared in court Wednesday with a full salt-and-pepper beard, in uniform and a wheelchair. He is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the November 2009 attack on the Army base, which left him paralyzed. If convicted, he could face the death penalty.
Hasan’s defense team argues that forcibly shaving their client would violate his 1st Amendment right to freedom of religion, since Hasan “is a practicing Muslim and has recently had a premonition that his death is imminent. He does not wish to die without a beard as he believes not having a beard is a sin,” according to his petition to the appeals court.
The lawyers noted that Hasan had “discussed his premonition and reasons for growing his beard” with a member of his military defense team who is an imam and who vouched for the fact that Hasan’s refusal to shave is due to “a sincere, personal religious conviction.”
Hasan had previously requested a religious exemption to wear a beard, but his request was denied by superiors, who cited the need for “discipline, unit cohesion and morale.” His attorneys noted that he had always appeared in “proper uniform” and had been careful not to make any “outbursts or act in any way to disrupt the court” — a reference to a ruling in June by the military trial judge, Col. Gregory Gross, that Hasan’s beard was a “disruption” to pretrial hearings.
Gross found Hasan in contempt and fined him $1,000 for violating Army grooming rules before announcing the stay. Hasan had already been fined $4,000 for refusing to shave.
As at earlier hearings, Hasan on Wednesday was forced to watch the proceedings from a nearby trailer equipped with closed-circuit television — an arrangement his attorneys said in their petition prevented them from counseling him during the hearings.
The four appellate judges agreed with the defense team that forcibly shaving Hasan would infringe on his freedom of religion, especially since he “has not in any way grown a beard to be defiant or to disrupt the court proceedings.” They questioned the reasoning for denying Hasan’s request for a religious exemption, especially since he now lives at the Bell County Jail, where his beard is unlikely to affect morale on base.
“Because alternatives which are less restrictive exist in this case, the judge’s order cannot stand” to forcibly shave Hasan for trial, the judges wrote in granting the stay.
Base spokesmen said the trial, which had been scheduled to start Monday, was stayed until the issue of Hasan’s beard was resolved.
At Wednesday’s hearing, Gross also addressed a motion by Hasan's attorneys that indicated Hasan wished to plead guilty for religious reasons, “to take responsibility for his actions.” Gross said that, by law, he could not accept a guilty plea in the capital case, but that Hasan's lawyers could still enter it.
The stay was issued before the lawyers could enter a plea.
At the Su Barber shop on Fort Hood Street, a busy thoroughfare across from the base, Spc. Tony Romano, 22, of Columbus, Ohio, appeared in uniform while getting a haircut. Romano, back from serving in Afghanistan, wasn't stationed at Ft. Hood when the shooting occurred, but he has strong feelings about Hasan standing trial and facing the consequences of his purported actions — even if that means he has to be shaved against his will.