-- IN THE UNITED STATES COURT OF APPEALSI. . - an I THE ARMED FORCES - NIDAL.M. HASAN . 1 ANSWER TO - Major (O-4) PETITION FOR -United States Army,_ EXTRAORDINARY RELIEF IN THE NATURE OF WRIT OF PROHIBITION - - Petitioner' . -- - - Crim. App. Dkt. No. MiscDkt.fNo. - GREGORY GROSS . . Colonel, U.S. Army` . Military JudgeRespondent . TO THE HONORABLE JUDGES OF THE UNITED STATES A COURT OF APPEALS FOR THE ARMED FORCES Statement of Statutogy Juiisdictiou Petitioner filed this original petition for extraordinary relief directly with this Court. Pursuant to the All Writs Act,1 `and Rule this-Court's Rules of Practice and Procedure, - .this`Court-may, upon_good cause, entertain original petitions - __for_extraordinary relief where petitioner_has not sought relief - at the appropriate Court of Criminal Appeals. 'This answer is .-- filed pursuant to Rule 27(a) of this Court's Rules and this - Court's order dated August 15, 2012. - . 1 28 U.S.C. 1651 (1992). I _Statement of the Case and-Facts - .Petitioner is charged with thirteen specifications of* - premeditated murder and thirty-two specifications of attempted 'premeditated murder, in violation of Articles 80 and 118(1), . UCMJ, arising out ofla mass-shooting at Fort Hood, Texas, on- November 5, 2009.2 The--convening authority referred the charges to a general court-martial authorized to adjudge a death _sentence on July 6, 2011, and petitioner was arraigned on July I 20, 2011. The military judge held Article 39(a), UCMJ,`sessions I- on October 27, 2011; November 30, 2011; February 2, 2012; April 4, 2012; April 10, 2012; June 8, 2012; June 19, 2012; June 29, . 2012; July 6, 2012; July 12, 2012; July!25, 2012; August 3, . - - 2012; August 9, 2012;-August 14, 2012; and August 15, 2012. On June 7, 2012, defense counsel informed the military - judge via email that the accused had grown a full beard and intended to maintain it while present in the courtroom.3 During l` the next Article on June 8, 2012, the military in judge addressed the issue of the accused's beard. The military_ - judge found that "[t]he accusedfs appearance is a disruption to this trial, and in violation of 804."4 ;The military judge later clarified that the accused's "conduct is disrespectful. . 2 Joint Appendix (JA) at 179-88. All references to the Joint _1 _Appendix and Supplemental Joint Appendix are to petitioner's `previous writ appeal, USCA Misc. Dkt. - 3 JA at 272-274; JA at 74. - 4.JA ac'75. - - - He is disobeying an order from the court; he is disobeying an order from his commander to he clean-shaven. His appearance is ?disruptive."5 He also pointed out, in response to argument.hy? defense counsel, agree with you that the accused is not being _disruptive, as in a normal case, where someone is yelling, arguing with the judge, whatever it . might be. However, I disagree with your assertion in your . . I - motion that his appearance does not_take away from the_dignity, - order and decorum of a . Because the military judge found the accused's wearing of a . beard in'violationIof'applicable uniform regulations and 804-to he disruptive, he excluded the accused from the - . courtroom,-and required that he view the proceedings via a closed circuit feed from a trailer outside the courtroom.7 `The military judge did make clear that he was "going to reconsider every time wg have a 39(a) session in this ?ase--1*m reviewing my - I an -options every I will weigh my options every time we have a hearing."? He also stressed that if the accused was to be granted an exception to the uniform reguirements, then he would- H. . allow the accused to remain in the courtroom with the beardfg 5 JA at saeas74-7878, 90. "Again, I'll reiterate that if Major Hasan gets the exception to the rule, then I will defer to those 3 . .- . gDuring voir dire of the judge on a separate motion, the military judge emphasized that his ruling was not based at all . upon the accused's intentions in growing a beard. I am not personally- offended about him . -. growing -a1 beard. . I don't doubt his - religious beliefs. I put that on the record the last time. I have no reason`to doubt - - the reason -that he's growing the beard. . However, it doesn"t matter. The rules are - . the rules. They apply to everybody . . . It - is the same with personal appearance and the grooming standards. I have nothing against . - -Major Hasan."1? . The military judge explained that have certain rules--they are in accordance with R.C.M. 804._ I always require an accused to be properly attired, and to present a good military appearance. I I don't let Private Snuffy come in here not making a good . military appearance. The highest accused I've ever had is a Lieutenant Colonel, and I didn*t let him either, and I'm not going to let Major Hasan do it."11 The accused's exception-to policy request to allow him to maintain the beard while in uniform was denied on June 26, 2012,m On_July 25, 2012, after again appearing in court with a -authorities and he'll be able to stay in_here with his beard I on." (JA at 1? JA at 151; see also JA at 83 have no reason to disbelieve - . the accused's reason for growing?the beard--that's not the issue - JA at` 77.- . JA at 127. AR 600-20, Army Command Policy (18 March 2008), . .para. 5-6h requires~that an individual must adhere to uniform requirements while an exception to policy request is pending. . . 4 .beard, the military judge held the accused in contempt for `1 . violating the military judge's order to be clean shaven because .o the accused1s "act constituted a disturbance of the proceedings 1 . 1 --1of this court, and1a_willful disobedience1of a-lawful order of -- the The military judge sentenced the accusedfine of The military judge also made clear - that if1the accused continued1to disobey the order of the court and not appear clean shaven, the-military judge would order the 1 1 1 - accused to1be involuntarily shaved.u The military1judge_ explained1that this would_occur as the oourtemartial proceeded to the Ymore.critical stages"; but no1latgr than August 25, when 1 1 . 1 panel selection begins, but possibly sooner depending on the . 1 nature of upcoming Article 39(a), UCMJ sessions.16' . On August 6, the accused filed with this Court a request 1 . for a stay1of proceedings,_and this petition for extraordinary_ 1 relief to1prohibit the military judge from ordering1the forcible 1 1 shave. On August 15, during an Article 39(a) session, this 1 _o 1 Court stayed the proceedings and ordered the Government to 1 A respond to the petition. 1 1 _1 1 11 Supplemental Joint Appendix iSJA)1at 53-54at`55 Relief Reggested I - Petitioner asks this Court to grant extraordinary relief by prohibiting the military judge from ordering the forcible . shaving of petitioner's facial hair. The Government.asks this - Honorable Court to lift the stay of proceedings and deny the petition because the_mi1itary judge's order is within his _authority under the Rules for Courts#Martia1. - Petitioner's Statement of the Issue - - WHETHER THE MILITARY JUDGE HAS AUTHORITY TO ORDER THE FORCIBLE SHAVING OF - BEARD WHEN PETITIONER WEARS A BEARD DUE TO HIS SINCERELY HELD RELIGIOUS BELIEFS. Law and Standard of Review - `This Court reviews petitions for extraordinary relief . .pursuant to the A11 Writs`Act." The Act provides that "a11' - - . lcourts established by Congress may issue all writs necessary or . appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of 1aw."m- The Act requires two separate determinations: first, whether the_ requested writ is "in aid of" the court's jurisdiction; and A second, whether the requested writ is "necessary-or -- n19 - - appropriate. - `17 28 1651(a); Denedo v. United States, 66 MUJ. 114, 119 2008). - . 18 28 u.s.c. 1651(a). - . . 19 Denedo, 66 at 1191. The Court has jurisdiction to hear this original writ petition because it is "in aid of" the Court's statutory . jurisdiction. - While this Court is empowered to issue extraordinary - writs unda; the All Writs Act, the express terms of the Act_ "confine the power of [the Court] to issuing process 'in laid of' its_existing Act does. not enlarge that jurisdiction."m? A.petition for . . .. extraordinary relief is "in-aid of" this Court's . jurisdiction when the petitioner seeks to_"modify an action that was?taken within the subject matter jurisdiction of the military justice system."m' For example, a petition seeking to confine a lower military court to the lawful exercise of its prescribed jurisdiction or its "sphere discretionary power" would be sufficient.22 - 2? Clinton v. Goldsmith, 526 U.S. 529, 535 (1999); Denedo, 66 - M.J. at 119-120, quoting Goldsmith, 526 U.S. at 534-35.` 21 Denedo, 66 M.J. at 120. . - - Dettinger v. United States, 7 M.J. 216, 218-220 (C.M.A. 1979). A finding or sentence need not be entered in order for this . _Court to entertain original petitions for extraordinary relief. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943) (The - court's authority "is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to . . those cases which are within?its appellate jurisdiction although . no appeal has been Indeed, this Court has - entertained original petitions for extraordinary relief at the - - . 'Article_32 stage. ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997), and 47 M.J. 80 (Daily Journal entry noting that ABC, Inc. Powell involved original petitions for extraordinary relief). - In this case petitioner alleges the military judge, gs . the presiding officer in the court?martial/B exceeded his authority by ordering the involuntary shaving of - . petitioner's facial hair. There_can be no doubt that petitioner's case, a general court--martial authorized to . impose a capital sentence, is within this Court's subject matter-jurisdiction, and his petition is an attempt to . - limit the court-martial's sphere of discretionary power. - This is not a case, like Goldsmith, where the petitioner 'challenged a_separate-administrative action unrelated to . any court-martial proceeding.". Rather, this is a direct challenge'to the military judge's authority under R.C.M. 804, and as such the petition is "in aid of" the Court's . . statutory jurisdiction, - 2. A writ is not necessary or appropriate because the military judge has authority to order the forcible shave.- . . A writ of mandamus or prohibition is a "drastic [which] should be invoked only in truly extraordinary- situations."" Therefore, petitioner has an "extremely-heavy- . .burden" to justify the granting of_a writ.2EUR - 23 801(a). Goidsmiah, 526 u.s. at 535.- . . - 25 Murray v. Haldeman, l6 74, 76 (citing _United States v. LaBel1a, 15 M.J. 228, 229 (C.M.A. 1983); and - United States v. Thomas, 33 M.J. 768 (N.M.C.M.R. 1991)). 26 Dew v. United States, 48 M.J. 639, 648 (Army Ct. Crim. App. "1997) (citing McKinney v. Jarvis, 46 M.J. 870, 873 (Army Ct. - As the writ is one of the most potent weapons in the `judicial arsenal, three conditions must be satisfied before it may . issue. First, the party seeking issuance of - the writ must have no other adequate means . - - to attain_the relief he desires-a condition_ . _g ndesigned to ensure that the writ will not be - . used as a substitute for_the_regular-appea1s` process.) - Second, .the petitioner? _must - satisfy the burden of showing that his right - to issuance ?of the writ is clear and - indisputable. Third, even if the first two prerequisites have been met, the issuing court,' in the exercise of its discretion, - must be satisfied that the writ is - appropriate under the circumstances.27 - . If petitioner fails to meet any-of?these requirements, then the writ is not necessary or appropriate. . - . Here, the Government agrees that petitioner has no -other adequate means of attaining the relief he seeks. Petitioner,-however, is not entitled to relief on the . merits because his-right to the writ is not "clear and indisputab1e." The military judge has authority, pursuant - - 'to R.C.M. 804, to compel the accused to appear in the - proper uniform.' Moreover, when a uniform violation becomes . a disruption to the court-martial (as it did here), the - military judge has additional authority pursuant to the Crim. App. 1997) and Bankers Life and Casualty Co., 346 U.S. at 384). . . - . 27 Cheney v. U.S._Dist. Court for Dist. of Columbia, 542 U.S. _367, 381 (2004) (internal quotation marks and brackets omitted) (quoting Kerr v- United States Dist. Court for Northern Dist._of Cal., 426 U.S. 394, 403 (1976); Bankers Life Casualty Co. v. . Holland, 346 U.S. 379, 384 (1953); and Ex parte Fahey, - 258, 260, (1947)). - . . Supreme Court's decision in Illinois v. Allen" to remedy . the disruption. . ll 2A. The military judge has authority, pursuant to I - R.C.M. 804, to order the forcible shaving of petitioner. - "It is essential to the proper administration of . criminal justice that dignity, order, and decorum be the . `8 -hallmarks of all court proceedings in our country."" To- . that end, "[c]ourts of justice are universally acknowledged to be vested, by their very creation, with power to impose -- silence, respect, and decorum, in their-presence, and . l- submission to their lawful mandates."w The "flagrant . disregard in the courtroom of elementary standards of . . proper conduct should not and cannot be - The military has long recognized the authority of the, - court-martial to compel an accused to appear in the proper. - an uniform to maintain the decorum of the court. Indeed, Colonel Winthrop's treatise addressed the-situation where - an accused appears out of uniform: "If the accused makes his appearance improperly dressed, or in a dirty or unkempt 22 Illinoisv. Al-len, 397 u.s. 33.7 (1970).- - . 22 397 U.s. at 343See Chambers v. NASCO, Inc. 501 U.S. 32, 43 (1991) (discussing a court's inherent authority to sanction conduct by an attorney), quoting Anderson v. Dunn, 6 Wheat. - 204, 227, 5 242 (1821).- 31 Allen, 397 U.S. at 343. - -'10 I - an -condition, the court may require him to be removed and . returned with the neglect remedied."32 The current Rules for Courts-Martial impose an I obligation upon the accused to appear in the proper uniform I an 804(e)(1) states that "[t]he accused shall be properly attired in the uniform or dress prescribed by the military judge."" The discussion to this_- rule provides that accused service member who refuses to present a proper military appearance before a court- martial may be compelled to do - ll I In the military, an accused's appearance in proper uniform is not only "an elementary standard of proper conduct," but is specifically required by R.C.M. 804(e)(1), without exception. -The mandatory nature of this rule - I-- authorizes the military judge, yested with authority to control the decorum of the courtroom, to I To find otherwise would render R.C.M. 804-vixtua11y_ . - -unenforceable.- - - -In petitioner's case, based.on these authorities the- military judge can compel compliance with the uniform ll . requirements of the court-martial by-having.him forcibly .- William Winthrop, Military Law and ?fecedencs 165 (2d ed., Government Printing Office l920).` 33 R.C.M, 804(e)(1), Discussion. - 34 Id. (emphasis added). . Emphasis added. 2- .g .11* I shaved. Forced shaving is not a novel concept in the military. Army regulations expressly authorize . nonconsensual haircutting and face-shaving for recalcitrant incarcerated Soldiers.36_ . This type of physical compulsion is akin to, and no more invasive than, the_military judge's authority to - restrain a disruptive accused. In Illinois v. Allen, the . - Supreme Court held that in dealing_with disruptive and defiant defendants, trial judges must be given "sufficient discretion to meet the circumstances of each case."" No one formula is best in all situations, but the Supreme - Court identified several options available to trial judges to handle #obstreperous" defendants, including: (1) binding and gagging the defendant, in order to keep him present; . (2) cite him for contempt; and (3) take him out of the- courtroom until he promises to conduct himself properly." . -- The Supreme Court even went so far as to say that in some` - ?36 See Army Regulation_190--47, The Army Corrections System, 15 June 2006, para. .The Government also notes that there - is substantial authority for federal and state judges to compel grooming for the purpose of witness identification. See, . `United States v. Lamb, 575 F.2d 1310 (10th Cir. 1978), and 24 A.L.R. 4th 592 (Propriety of requiring suspect or accused to -alter, or to refrain from altering, physical or bodily . - appearance) (collecting cases). - . 397 at 343; see also United States v. Gentile, 1 M.J. 69, 70 (C.M.A. 1975). at 3451-45 situations, "binding and gagging might possibly be the fairest and most reasonable way to handle a defendant "39 ,This Court also_recognized the military judge's authority to deal with a disruptive accused in United .States v. Gentile."' There, the military judge ordered the accused handcuffed because he persistently threatened to remove his clothing in the presence of the court members."u This Court held that "[d]etermining whether to restrain the accused and, if so, the degree of restraint necessary to . maintain dignity, order, and decorum in the courtroom areQ matters within the sound discretion of the military judge.h" The Court found the military judge had authority . to restrain the accused and compel him to appear in the- proper uniform in order?to maintain the dignity of the courtroom." . - In petitioner's case, by refusing to-shave his beard - . he is out of uniform, and in willful violation of Army . Regulation (AR) 670--l and the military judge's orderM.Id. was within [the military judge's] authority . to_require Private Gentile to-appear in a proper military -- Whether petitioner is out of uniform is an issue that has . - already been decided, and is not (and indeed could not be) - before this Court. The Department of the Army denied _c - n. 13 lmere fact that petitioner is out of uniform allows the A military judge to enforce compliance. Further, the military judge_found_that_petitioner's beard, while not A .- disruptive in the traditional civilian sense, is-disruptive - an and affects the dignity of the proceeding because n' petitioner is flagrantly disobeying an order of his command - and the court--martial." As such, the military judge has authority to remove the disruption by compelling petitioner to shave and appear in the proper uniform. If the judge has authority to bind and gag a disruptive accused, then . - . certainly he has authority to forcibly shave petitioner. Prior to ordering the forced shave, the military judge tried several alternative means to compel petitioner to shave. First, the military judge verbally marned the accused that he mas out of uniform, and in violation of an order of the court.46 Second, the military judge removed' - petitioner from the courtroom to participate in the I proceedings from a remote location. Petitioner`was iem?ved_ - an from nine Article fhird, the military judge held five separate contempt proceedings, fining - l` Eetiti0ner's request for a religious exemption to the uniform . regulation, and petitioner has not challenged that decision in federal court. JA at 127June 19 and 29; July 6, 12, and 25; August 3, 9, 14, and 15. 14 petitioner $1,000 each.time." The military judge also gave petitioner several_opportunities to shave so that he could . re-enter the courtroom."? On these facts, it is clear that nothing short of forcibly-shaving petitioner will end the . disruption. The military judge's attempts to use alternative means show that his order was not reflexive or . 3 unreasonable. l" - - Moreover, the military judge could reasonably determine that forcibly shaving petitioner is the remedy . - that best takes into account petitioner's fundamental - . rights to attend trial; to confront the witnesses against him; and to communicate with his defense teann5? while at - the same time maintaining a full and fair-proceeding by foreclosing any possible prejudice from panel members seeing the accused with a full beard.$' As the Navy Board l- - of Review stated in United States v. Whitehead: 7 "It cannot be denied, we think, that the sight of -. the accused at trial, as he is arraigned, as he - he confers with counsel, and as he . .stands to be sentenced, is part of the 'silent - 45 July 25;_August 3, 9, 14, and 15. --See Second Supplemental 2 Joint Appendix (SSJA) at 1-13. 49 JA at 90 (noting that the military judge_would reconsider his . _optionS at every Article 39(a) session); 54.' 5F See Allen, 397 344 (recognizing that one of the - primary advantages of being_present.at the trial is the' accused's ability_to communicate with counsel). - - - The_military judge also noted that petitioner had complied` . . with AR 670-1 for years, and had previously been clean shaven at . all Article 39(a) sessions.n JA at 89- - evidence' in thecase. Accordingly, Lit is but part of' a full and fair proceeding that _he be_` _entitled to stand before the court-martia_l as a - sailor should,- neat, clean,? and sharp, in the uniform--of#the-day, complete with merited . insignia, `ribbons, and . . is more inflammatory to an officer of the . military than to see a member of his service 'out of uniformf or wearing a soiled or ill--fitting uniform."w . - . - - Simply because the accused voluntarily chooses to wear la beard does not mean the military judge must "take the . dare" and run the risk that the accused will further n" _inf1ame the panel to his own detriment;w That is . particularly apt in this case, where -- as defense counsel - noted - the case "has drawn, at least in terms of military cases, an unprecedented level of pretrial publicity."M The `military judge need not stand-by as the petitioner injects potential error into the court-martial. - . - Petitioner also argues he did not grow a beard to be defiant or to disrupt court proceedings. ?Rather, - petitioner has sat quietly during proceedings, and has not in been disrespectful to the court."" It is - difficult to imagine an action more disrespectful to the' - . court than willful disobedience of the court's orders.' 52 27 875, 876 (N.B.R. 1959). `53 Gentile, M.J. at 70,-citing Loux v. United States, 389 F.2d 911 (9th Cir. 1968).. - 5* at 3. 55 Petition at 17That.said, to the extent petitioner suggests that loud outbursts in court are the only means of disrupting - proceedings, that contention has no support in the law. For example, in Gentile it appears the accused was quiet . and attentive, other than his six threats to disrobe in_ court._ Gentile's conduct was still disruptive. For that reason, judges are given discretion to handle each - . particular case in an appropriate manner. - . _The military judge's order does not unlawfully - . infringe on petitioner's First Amendment rights. Petitioner's main argument in seeking relief from this Court is that the military judge's order to forcibly shave his I facial hair infringes on his right to free exercise of religion under the First Amendment and the Religious Freedom Restoration Act. This argument fails on the merits. . Congress enacted the Religious Freedom Restoration Act of 1993 42 2000bb(a)(5), in response to the - Supreme;Court'sIdecisionlin Employment Division v. Smith.56 an - There, the Supreme Court held that the Free Exercise Clause of the_First Amendment does not prevent enforcement of otherwise . valid laws of general application that incidentally burden l" religious conduct.57 I I 56 494 u-is. 872 .(l990). I - 57 Smith,_494 U.S. at 877-882.. - In reaching this conclusion, the supreme Court did not apply the compelling interest test that it had previously used in cases such as Sherbert v. Vernerfm (prohibiting government from conditioning unemployment compensation benefits on Seventh-. day Adventist's willingness to work on Saturdays, her faith's -day of rest), and Wisconsin v. Yodefw (invalidating compulsory i school-attendance laws as applied to Amish parents who refusedl . on religious grounds to send their children to school). Under .the compelling interest test, the government may only n- . substantially burden a personfs exercise of religion if it is in an . _furtherance of a compelling government interest and is the least l- restrictive means of_furthering that.interest.6?_ - The Religious Freedom Restoration Act effectively overturns - the Supreme Uourt's v._Smith." . I Specifically, a petitioner establishes a prima facie case under RFRA by showing that the government "substantially burdens" his _Yexercise of religion."Q If the_petitioner makes this showing,. then the burden of persuasion shifts to the government to_ .. cdemonstrate`that the burden on religion (1) is in furtherance of - a compelling governmental interest, and (2).is the least . 58 374 U.S. 398 (1963). n- an U- 59 406 0.s. 205 (1972U.S.C. 2000bb restrictive means ef furthering that_cempelling'gevernmental - an interest." I establish a prima facie case under the First Amendment," his arguments fail because the Army's greeming standards under AR 670-1, and the.military judge's erder te cemply with these standards,_satisfy strict scrutiny. I -. - l. The Army's greeming standards sheuld still receive I . deference frem this Ceurt pest-RFRA. an The Supreme Ceurt recognized in Geldman that the "review ef military regulatiens challenged en First Amendment greunds is I far mere deferential than censtitutienal revien ef similar laws er regulations designed fer civilian seciety."" This deference .. is due largely te the Ceurt's recegnitien that "{t]he essence ef . military service.is the suberdinatien ef the desires and . . 'interests ef the iH$ividual te the needs ef the service," and M. - that "te accemplish its missien the military must_fester instinctive ebedience, unity. cemmitment, and esprit de . Here, as in Goldman. the Army premulgated a persenal appearance` regulation (AR 670Tl) that festers discipline, ebedience. and` an esprit de corps in its persennelThe.Gevernment dees net cencede that Petitiener's wearing ef a rbeard is based upen a sincerely held religieus belief. - 65 47-5 0-.s. 503, 507 (1986). - - 66Id._ - .- II I RFRA does not change this result. "In enacting RFRA, I I I Congress intended to incorporate the standard governing free . I exercise claims that prevailed before the Supreme Court's I decision in Employment Division v. Smith."? "The aim was to restore what,Iin Congress's view, is the free exercise right the Constitution guaranteed -- in both substance and scope."" Thus, I #;qngI;SS legislated against theIbackground of precedent" that -I preceded the suprame?c?urr*S decision in Employment Division v. I Smith."_ The Supreme Court's decision in Goldman isIplainlyIoneI - I such decision.69 I I. I I The text of RFRA confirmsIthat the statute does not I - I displace the_traditional'deference courts show to the military, as exemplified_by Goldman. Congress declared that, in light of - Employment Division v.ISmith, the are "to` restore the compelling interest test as set forth in Sherbert v. I Verner, 374 U.S. 398 (l963) and Wisconsin v. Yoder, 406 U.S. 205 . I . (1972) and to guarantee its applicationIin all cases where free . I exercise of religion is substantially burdened."m lCongress I II - specifically recognized that_"the compelling interest test aS_ I set forth in prior Federal court rulings is a workable test for I i 66hRasul v.IMyers, 563 F.3d 527, 532 (D.C. Cir. 2009); Holy Land I Foundation v. Ashcroft, 333 F.3d 156,-166-67 (D.C. Cir. 2003). Rasui, 563 F.3d at 532Cutter v. Wilkinson, 544 U.S. 709, 42 u.s.c. - . striking sensible balances between religious liberty and 7 - competing prior governmental interests."n' Thus, RFRA was never intended to, and did not in fact, alter the standard of review applied-by the Supreme Court in Goldman. Indeed, the federal courts have already paid similar deference to correctional I facilities post-RFRA." - As the Senate Report for RFRA recognized; "Under the unitary standard set forth in the act, courts will review the. . free exercise claims of military personnel under the compelling . governmental interest test. Ihe committee is confident that the - I bill will not adversely impair the ability of the C.S. military to maintain good order, discipline, and security."" `The Senate - Committee continued: "The courts have always recognized the-- compelling nature of the military's interest in these objectives in the regulations of our armed services. Likewise, the courts have always extended to military authorities significant deference in effectuating these interests. The_committee intends and expects that such deference will continue under this b111.~" . I . "-seam. l. I- - l- 72 See, Blanken v. Ohio Dep't of_Rehabilitation and . Correction, 944 F.-Supp. 1359 (S.D. Ohio 1996); Diaz v. Collins, - 114 F.3d 69 (5th Cir. v. Baldwin, 109 F.3d 557 (9th Cir. 1997). - . 73 See S. Rep. - 74 Id. (emphasis added). . 21 - The House Committee similarly expected that RFRA would not eliminate the deference that courts show to the military."- Specifically, the House Committee "recognize[d] that religious liberty claims in the context of prisons and the military - present far different?problems for the operation of those an institutions than they do in civilian settings.7k _The House . Report expressly noted that ensuring "discipline in our armed forces [has] been recognized as governmental interest[} of - the highest order."w . The Supreme Court's decision in Cutter is also informative. There, the Supreme Court addressed the Religious land Use and- Institutionalized Persons Act a subsequent companion statute to RFRA that specifically makes the compelling interest test applicable to prisons.u_ The Supreme Court observed that' . the Act adopts a 7compelling'government interest' - standard, context matters in the application of that standard."79 "Lawmakers supporting RLUIPA were_mindful of the urgency of 1 discipline, order, safety, and security in penal institutions,"I and "[t]hey anticipated-that courts would-apply the Act's . standard mith due deference to the experience and expertise of. prison and jail administrators in establishing necessary -75 See H.R. Rep. lC3-88 (May ll, l9935-78 Cutter, 544 UQS. at 722-23. - . 79 Id. (emphasis added).regulations and procedures to maintain good order, security and l` Court_should apply no less deference to the esperience and expertise of Army commanders. Even if this Qourt does not apply Goldman deference though, .AR 670-l and`the-military judge's order serve compelling l` governmental interests and are the least restrictive means of serving those interests. - - R. AR 670-l Furthers Compelling Government Interests. . "The Army's grooming policy outlined in Army Reg. 670-l - l. promotes discipline, unit cohesion, and esprit de corps. IMilitary discipline is founded upon self-discipline, respect for properly constituted authority, and members embracing the- professional Army ethic with its supporting individual values.?1 I Military discipline is affected by every feature of military life. lt is manifested in individuals and units by cohesion, . bonding, and a spirit of teamwork;-by cleanliness and maintenance of dress, equipment and quarters; by deference to- . senior officers and mutual respect between senior and - subordinate personnel; by the prompt and willing egecution`of an both the letter and the spirit of legal orders of their lawful - - B. . Army Reg. 600-20, para,4-ia. . commanders; and by fairness, justice, and equity for all Soldiers.?2 - An officer's personal appearance easily falls within these categories. Indeed, a vital ingredient of the Army's strength and military effectiveness is the discipline Soldiers bring to . their service through a conservative military image." "The Army is a uniformed service where discipline is judged, in part, by - 'the manner in which a soldier wears a prescribed uniform, as well as by the soldier's personal appearance.""` As the D.C. . Circuit noted in their opinion in Goldman: - "lnsistence on strict compliance with uniform regulations breaks down the barrier of resentment to discipline, - possibly more than anything else. If men strictly-obey the . . regulations about wearing the uniform, they can be held . truly disciplined men."85 _1 Individual compliance with strict grooming and appearance I standards requires and supports-discipline. The willingness of hall Army personnel to present a neat and well-groomed appearance - is fundamental to the Army and contributes to building the pride - - - l` and esprit de corps essential to an effective military force. There is no question that the discipline, unit cohesion, and ?esprit de corps advanced by the Army's grooming policy are . compelling interests. 82 Army Reg. 600-20, para. 4-lb. . Army Reg. 670-1, para. l-7a. . .8*1d; . 85 Goldman v. Secretary of Defense, 734 F.2d 1531, 1538-39 Cir. 1984), quoting H. Semmes, Portrait of Patton 8 (1955)). . 24 Petitioner argues that these interests are less compelling nas applied to him since he "resides full time in a county jail, punctuated only by brief trips to the Fort Hood courtroom.78? . This argument is unpersuasive.' The essence of military service, "'is subordination of the desires and interest of the individual - to the needs of the These interests do not- I dissipate because petitioner is in pretrial confinement. The idea that the uniform regulations-somehow don't apply, or apply . 5 with less force, to an accused in pretrial confinement ignores the presumption of.innocence. `Indeed, as noted above in. . Whitehead," an-accused's right, as well as his obligation, to appear in proper uniform may be heightened during-court--martial. In short, there is no exception to the uniform regulations for an accused in pretrial confinement. As the Supreme Court ?recognized, "'[the inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and order - must be virtually reflex with no time for debate or Because the ultimate purpose of this institution - and its traditions is to protect the nation, "'the military must 86 Perlman at-.18. . I I 87 Goldman, 475 U.S. at 507 (quoting Orloff v. Willoughby,_345 . U.S. 83, 92 (1953)). 88 Supra pp. 15-168?.Goldman, 475 U.S. at 508 (quoting Chappell, 463 U.S. at 300); . insist upon a respect for duty and discipline without counterpart in civilian . Petitioner further argues that the.government's interest in maintaining uniformity is not compelling because the Army makes - I exceptions to the uniform requirement for religious and medical reasons.m' But the existence of exceptions does not make the government's interest any less compelling." If it did, then one . could argue that the need to follow deployment orders is not compelling solely-because the Army_allows for conscientious objector status." There is no doubt, though,-that the Army has a compelling interest in requiring Soldiers to deploy with their units.9? - . 3. The Army's Grooming Regulation is Narrowly Tailored. The Army's grooming policy is narrowly tailored to achieve . its compelling interest in recruiting, developing, and - maintaining a disciplined force. The Army places a high value_? Goldman v. Weinberger, 475 (l986)(quoting 420 U.S. 738, 757 (1975)). Petition at 19; see also Army Reg. 670-1, para. 92 See, Blanken v. Ohio Dep't. of Rehabilitation and Correction,_944 F.Supp. 1359, 1369-70 ("The_Court finds that the . _mere fact that the Policy prescribes a different standard for- female prison employees does not prevent the policy from being . the least restrictive means to achieve the compelling interest` in safety furthered by Army Reg. 600-43, Conscientious Objection (21 August 2006). - - - 94 United States v. Webster, 65 M.J. 93 (Army Ct._Crim; App. 2008) (applying RFRA to determine whether deployment orders infringed on rights.), an the rights of its Soldiers to observe tenets of their an respective religious faiths.% _The Army "will approve requests for accommodation of religious practices-unless they have an . adverse impact on unit readiness, Qcohesion, morale, discipline, safety, and/or military necessity factors permit the Army to impose burdens . i that are unparalleled in civilian life in order to achieve its mission of fighting the nation's wars. - _The propriety of accommodation is determined based on an "command consideration circumstances, at a specific point in time, in`the context of a particular unit_ . mission."" Military necessity is the Army's paramount concern and it is constantly subject to change. Therefore, the Army's - . insistence that petitioner agree to abide by its regulations and - --. 'acknowledge that there may be circumstances where military_ necessity overrides his desire-to practice his religious beliefs. is?the least restrictive means of satisfying its compelling interest in recruiting, developing, and maintaining an effective lh fighting force capable of accomplishing its mission. fn Army Reg. 6uu--20, para. 5-6a4. The military judge's decision to enforce AR 670-1 by involuntarily shaving petitioner's beard is. . narrowly tailored and reasonable under the . circumstances. Petitioner argues that forcibly shaving him is not a" . . narrowly tailored method to achieve the government's interesti However, as noted earlier the military judge already_tried . several alternative means to indirectly compel petitioner to appear in the proper uniform. The military judge verbally warned petitioner; removed him from the courtroom; held him in_ . contempt (five times); and offered every opportunity to shave and return to the courtroom. At this stage, involuntarily . nshaving petitioner is the least restrictive means to ensure 2 petitioner's compliance with the uniform regulation; it is the . . only remaining option the judge has to ensure compliance. Allowing petitioner to continue to wear the beard and giving the panel_members a limiting instruction, as suggested by - petitioner, is not the least restrictive means to accomplish the_ government's compelling interest. This option may mitigate any` potential prejudice to the panel, but it does nothing to bring - petitioner into compliance with the terms of R.C.M. 804, AR 670- . 1, and the-military judge's order to appear in proper uniform. -- `Because the government has a compelling interest in ensuring that 1) petitioner is not in flagrant disobedience of Army regulations 2) petitioner obeys the command given by his . i commander to be in compliance with Army regulation, and 3) - petitioner complies with the military judge's order, allowing . petitioner to maintain the beard would undermine, not further, the government's compelling interests.- . Moreover, although not raised by petitioner, charging him- - with an Article 92, ucmu, violation would be just as futile as_ l` the judge's previous attempts to_bring petitioner into . . _compliance. As the Supreme Court noted in Allen, such a charge would have "obvious limitations asia sanction when the defendant is charged with a crime so serious that a very severe sentence - such as death or life imprisonment is likely to be imposed."" Permitting petitioner to maintain his beard would signal to every subordinate and every sitting accused that it is - acceptable to be in non-compliance with judicial orders and Army- regulations._ Particularly because petitioner's trial has drawn- - an "unprecedented level of pretrial suggestion- an _that he maintain the beard while undergoing.court-martial- i proceedings is not a viable means of accomplishing the- governmentls compelling interests. 98 Allen, 397 U.S. at 345. _The military judge noted this point during the accused's first contempt proceeding. SJA 51. . .29 Conclusion. A . The military judge's actions in this case are clearly `contemplated by both the language of R.C.M. 804 and the . parameters set by the Supreme Court for dealing with disruptive - accused. The military judgels actions are the least restrictive .means for the government to achieve two compelling interests: lf I preserving petitioner's right - at his capital murder trial -- to . . `confront the witnesses against him, and 2) ensuring that a military trial proceeds without a distracting and disruptive sideshow featuring an officerraccused flagrantly disrespecting the Army, his superiors, and the military judge, an - I respectfully requests this Honorable Court deny the petition and lift the stay of proceedings, . an CHAD M. FISHER AMBE ROACH . Captain,.JA - . Lie ena Colonel, JA Branch Chief, Government Act_ng.C ief, Government Appellate Division Ap el ate Division. - Bar No. 34883 - U.S.C.A.A.E. Bar No. 332Z4 . .. . 30 I - - WITH RULE 24(d)' -1. This brief complies with the type--volume limitation of Rule - 24(c) because: . . This-brief contains 6,508 words. - 2. This brief complies with the typeface and type style - . requirements of Rule 37 because: - Tnis brief has been typewritten in 12--point_font, mono- spaced courier new typeface in Microsoft Word Version. nl CHAD M. FISHER - 'n . Captain, Judge Advocate Attorney for Respondent . . August 22, 2012 31 - CERTIFICATE-OF FILING AND SERVICE I certify that the original was electronically filed to efiling@armfor.uscourts.gov on 17;,4. and . contemporaneously served electronicall on appellate defense - . counsel, CPT Kristin McGrory and MAJ Christopher Martin, at and - . . Lead Paralegal . - . - - Government Appellate - Division_