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December 5th, 2012
By Dan Miller
Getting a clean conviction of Major Hasan is more important than whether he has a clean face.
The court martial of Army Major Nidal Hasan, who murdered thirteen people at Fort Hood, Texas in 2009 and wounded thirty-two others while screaming Allah Akbar, has dragged on too long. If he had been forcibly shaved he would have had grounds to continue the charade and, if eventually convicted, to appeal that conviction for many years.
Defense counsel likely tried to inject legal error into the proceedings as grounds for post-conviction appeals. That’s what defense counsel try to do when the evidence of guilt is overwhelming. On December 3th the military judge, Colonel Gregory Gross, was removed principally because he may have shown bias by insisting that Major Hasan’s beard be shaved.
The Court of Appeals for the Armed Forces, which sits in Washington, D.C., said in its 10-page opinion that because of a variety of factors, a reasonable person “would harbor doubts about the military judge’s impartiality.” The court did not say that the trial judge was actually biased, officials noted, but instead ordered the removal for the appearance of bias. The court also set aside the six previous contempt convictions against Hasan, who has refused orders from Gross to shave his beard and conform with Army grooming standards in the courtroom, though it did not issue a ruling on whether Hasan has a right to wear his beard under the Religious Freedom Restoration Act.
A new trial judge will be detailed to the court-martial and will decide on the matter when the case goes back on the record in open court.
That ruling riles but is correct pragmatically. Of course Major Hasan is required to be clean shaven; he is still an Army officer and was appearing at his court martial. He apparently did not discover his Islamic obligation to grow a beard until after his court martial had begun. Perhaps defense counsel suggested that a beard could disrupt the proceedings and thereby provide grounds for appeal later; perhaps Major Hasan just decided to grow a beard because of a conveniently timed realization that his Religion of Peace requires it. It does not matter which and there is, in any event, no way to determine why he did it. Was Judge Gross prejudiced against him? Only if requiring him to comply with grooming standards required of all other Army officers shows prejudice; it does not. That does not matter either. The important thing is that the court martial can now proceed, at least until defense counsel discovers additional bases for disruption and subsequent appeal.
If during his next court appearance Major Hasan wears a tutu, Michael Jackson moon boots and a head cover of the sort women are required to wear in Islamist places, the court martial should ignore the attempt at intentionally farcical insults and proceed with the trial. Otherwise, Major Hasan is likely to die of old age while supported by taxpayers as his appeals wend their way back and forth from the trial court through various levels of appeal, back to trial and on and on and on. That would be a disgrace to the military justice system and to the nation. A former Army JAG officer, I have long been very proud of the American system of military justice and would be outraged.
The important thing is to give him a fair trial where all of the relevant and clearly admissible evidence is considered, for the court to decide on his guilt or innocence and, if found guilty, to impose appropriate punishment.
A female military judge, Colonel Tara A. Osborn, has been designated as Colonel Gross’ replacement. That may generate grounds for further delay, disruption and eventually appeal from a conviction. Those grounds may be no less specious than those that resulted in the replacement of Colonel Gross. Whether they are specious or valid matters little because in either event the trial may be delayed and disrupted further and the appeal further protracted. Here are two thoughts:
♦ Might the designation of a female military judge to preside over the trial of an Islamist male be deemed evidence of prejudice? Arguments to that effect could be made.
♦ If those arguments are rejected, must Colonel Osborn’s head be covered in Islamist fashion during the trial so as not to offend Major Hasan’s sense of Islamist decency? Would a failure to do that be deemed evidence of prejudice? Stranger things have happened.
It would have made more sense to designate a male military judge to preside — if moving the trial forward was the goal and if delaying Major Hasan’s conviction and execution indefinitely was not the goal. Perhaps further thought will be given to this matter; it should be, soon.
(This article was also posted at Dan Miller’s Blog.)
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