A judge has the right to order an Army psychiatrist charged in the 2009 Fort Hood shooting rampage to be forcibly shaved of his beard before his murder trial, military attorneys told an appeals court Wednesday (local time).
The attorneys, in a document filed on behalf of Colonel Gregory Gross, contend that forcibly shaving Major Nidal Hasan would not violate the American-born Muslim's religious freedoms and said it is similar to "and no more invasive than" a judge's right to restrain a defendant who is disruptive during a court-martial.
"Forced shaving is not a novel concept in the military," military attorneys said in the judge's response filed with the US Court of Appeals for the Armed Forces.
"Army regulations expressly authorize non-consensual haircutting and face-shaving for recalcitrant incarcerated soldiers. ... If the judge has authority to bind and gag a disruptive accused (soldier), then certainly he has authority to forcibly shave (Hasan)."
Last week that appeals court delayed Hasan's court-martial, which had been set to start earlier this week with jury selection, while it considers his appeal to being forcibly shaved.
Now that the judge has responded, the court can make a decision or choose to hear oral arguments in the case first.
Hasan has grown a beard to express his Muslim faith.
His defence attorneys have said he won't shave since he's had a premonition that his death is imminent, and he doesn't want to die without a beard because he believes not having one is a sin.
Hasan faces the death penalty or life in prison without parole if convicted in the November 2009 attack on the Texas Army post that killed 13 people and wounded more than two dozen others.
Gross has banned Hasan from courtroom hearings since he first showed up in court in June with a beard, letting him watch the proceedings on a closed-circuit television in a nearby room.
But Gross said Hasan will be forcibly shaved before the trial if he doesn't shave himself. The judge has said he wants Hasan in attendance during the court-martial to prevent a possible appeal on the issue if he is convicted.
The government does not believe that Hasan's beard is based on a sincerely held religious belief, prosecutors have said.
Even so, Gross' response also told the appeals court that his order does not violate Hasan's religious freedoms.
Army rules prohibit beards, and those who join the military have agreed to give up certain personal interests over the needs of the service, according to the document.
Military courts have granted exceptions to certain rules because of religious grounds, such as allowing a Jewish soldier to wear a Yamaka, but Hasan shouldn't be allowed to keep his beard because his religious beliefs are associated with the crime, said Jeff Addicott, director of the Center for Terrorism Law at St Mary's University Law School. He is not involved in the Hasan case.
In urging the court to deny Hasan's appeal and to allow the trial to proceed, Gross' response said that his order to forcibly shave Hasan ensures "that a military trial proceeds without a distracting and disruptive sideshow featuring an officer-accused flagrantly disrespecting the Army, his superiors, and the military judge."
The trial is expected to last more than two months at Fort Hood, about 200 kilometres southwest of Fort Worth.