By Winston Ross
Dec 5, 2012
In any trial, having an appellate court yank a sitting judge from the bench in the middle of it is a rare and very big deal. So when it happened on Monday, when the highest military appellate court in the United States ordered the removal of Col. Gregory Gross from the court-martial hearing of Maj. Nidal M. Hasan, accused of gunning down 13 members of the military in a 2009 rampage at Fort Hood, Texas, it was a shocking turn of events.
“It’s extremely unusual,” said Eugene Fidell, who teaches military justice at Yale Law School. “I can’t remember that happening to a trial judge.”
Especially when you consider one of the chief issues in the trial judge’s removal: Hasan’s scraggly beard, and Gross’s insistence that he get rid of it.
Attorneys on both sides of the case, in which Hasan is charged with 13 counts of murder and 32 counts of attempted murder, have been battling over the suspect’s facial hair since he showed up wearing it at a hearing in June. If that seems like an odd preoccupation in a murder trial, it is. But Hasan grew a beard sometime after his arrest on Nov. 5, 2009, and in the U.S. military, beards are mostly verboten. As Hasan has yet to be convicted of anything, he’s still a military officer, and he’s still bound by military rules that “males will keep their face clean-shaven when in uniform or in civilian clothes on duty.”
The rule goes back decades, depending on which branch of the military is in question. Now, only moustaches are OK, with some exceptions granted to those with skin conditions or severe acne. Special Forces troops in Afghanistan were allowed to rock a beard between 2000 and 2010. But beyond that, despite some recent pushback among troops who say they’d blend better in places where beards are a central part of the culture, the Army has yet to yield on its policy.
Hasan’s facial hair matters to him, one of the attorneys trying the case told The Daily Beast on the condition that he not be named, because the accused is a Muslim, and because he was paralyzed from the waist down in the 2009 shooting. Followers of Islam believe that they meet their creator in the same physical form that they walked the Earth, and that facial hair is mandatory. As a paraplegic, the attorney told The Daily Beast, Hasan has a life expectancy that has been reduced 20 to 40 percent due to greater susceptibility to infections and cardiopulmonary disease, and he is no longer willing to take the afterlife risk he did before the shooting, by keeping his face free of facial hair.
"Your honour, in the name of almighty Allah, I am a Muslim,” Hasan told Col. Gross in an October hearing. “I believe that my religion requires me to wear a beard.”
Hasan’s attorneys argue that under the Religious Freedom Restoration Act he should be exempt from the military’s ban on beards, noting that several other soldiers have requested and received pardons for their own facial hair over the years.
The prosecution—and the victims’ families—see the whole thing differently. To them, the beard not only is a potent symbol of the faith that some are convinced turned Hasan into a mass murderer, but may even be a tactic—to make it harder for witnesses in the trial to recognize the man who pointed a gun at them and their fellow officers and pulled the trigger, again and again. To qualify for a religious-freedom exemption, the law requires the beard-grower in question to be “sincere,” and the prosecution argued he wasn’t; that Hasan was merely trying to disguise himself. Prosecuting attorneys also said it wasn’t appropriate in this proceeding to second-guess a decision made by the Department of the Army about Hasan’s beard.
In a video produced by a group that insists the Fort Hood shooting was a terrorist attack and should be labeled and prosecuted as such, several people who were on the base that day are interviewed about what happened to them, and about their belief that Hasan did what he did because of his Muslim faith.
“Right now he’s got a beard that he’s refusing to shave because of his religion,” Dayna Sue Rosco, security protective specialist with the Army, says in the video. “Recognize it as an act of terrorism, for what it is. If we label it as something else, it’s not going away.”
From the beginning, Gross made no secret of his position on the facial hair. The first time Hasan arrived in court with the beard, Gross ordered him excluded from the proceeding, calling it “a disruption to this trial and in violation of (military rules)” even though he later acknowledged that move could violate the defendant’s Sixth Amendment right to confront his accuser and participate in his trial. Gross relented and let Hasan back in the courtroom, but insisted Hasan make a date with a razor, slapping the defendant with six separate convictions for contempt of court since this summer. Hasan kept his hair.
The appeals court ruling leaves out one important detail: what to do about the beard.
Then things got weird. After that first hearing, the judge went to the latrine, according to the ruling of the Court of Appeals for the Armed Forces, and found what he described as “what appeared to be feces spread out on the floor.” Assuming that was Hasan’s doing, Gross ordered the accused’s attorneys to “get someone over to the courtroom immediately” to clean the latrine and ordered that “the accused will not use that latrine again.” The “feces” turned out to be mud from other soldier’s boots.
Gross’s remark became a central component of the defence’s request that he find something else to do. The appeals court said the judge had “allowed the proceedings to become a duel of wills between himself and (Hasan) rather than an adjudication of the serious offenses with which Appellant is charged.”
“It really blew up from there,” the attorney told The Daily Beast.
Another jarring fact revealed in the appeals court’s ruling: this judge and his family actually were on base when the shooting went down, which led the defence to argue at the outset that he shouldn’t be the one trying the case. Gross is the only judge in the Army who was at Fort Hood that day.
The appeals court, stunningly, agreed. In a 10-page opinion issued Monday, the court pulled Gross off of the case, arguing that a reasonable person “would harbour doubts about the military judge’s impartiality.” The court also vacated Gross’s Sept. 6 order that Hasan be forcibly shaved, and wiped out the six contempt citations against the defendant.
“This is a huge ruling,” the attorney involved in the case told The Daily Beast.
The court found that while the judge believed Hasan’s beard a “‘disruption,’ there was insufficient evidence on this record to demonstrate that [Hasan’s] beard materially interfered with the proceedings.”
One important detail the ruling leaves out, though: what to do about the beard.
“We need not and do not decide if and how RFRA might apply to Appellant’s beard,” the court wrote in its opinion. “Should the next military judge find it necessary to address Appellant’s beard, such issues should be addressed and litigated anew.”
The appeals court punted that question to Gross’s replacement, Fort Bragg Col. Tara Osborn. Which means a pre-trial proceeding that has dragged on for three years is about to start all over again.
“You’d think they might have shed a little light on the subject, given some roadmap to the litigants in the lower court,” Yale’s Fidell told The Daily Beast. “Instead, they’re saying, ‘We’re going to play this game over with a different umpire.’ It means more waste of time.”
One possible reason for that waste of time, though: the court’s ruling removes one of Hasan’s options for an appeal: bias on the judge’s part.
“If there wasn’t some strong medicine now, the system might be tied up for another 10 years afterwards, if the case gets overturned, for some reason,” Fidell said. “Now, that’s moot.”
Winston Ross is a national correspondent for Newsweek & The Daily Beast, based in the Pacific Northwest.