8/23 Motions Session #2: What Kind of Officer is the Convening Authority?

LCDR Kevin Bogucki argues AE105---or would, if the time were right.  But it isn’t, in his opinion. Ramzi Binal Shibh’s attorney thinks AE031, a motion to dismiss for unlawful influence, jibes with AE105, which challenges the Convening Authority’s status under the Constitution’s appointment clause.

The two ought to be heard and considered together, he says, but we haven’t heard AE031 yet, in part because discovery matters under that motion have not been resolved.  We thus ought to delay.  The court and counsel then debate whether AE105 is genuinely dependent on AE031, or poses a purely legal, structural challenge.  The court hints at the latter, as indicated by a few skeptical questions to Bogucki.  Defense counsel, observes the Chief Prosecutor, is apparently well-versed in the AE105 appointments issues.  A quick resolution: Judge Pohl thinks this is structural stuff, and therefore ready-to-go, but he’ll hold AE105’s decision until he’s heard argument on AE031, too.

J. Connell III swaps with Bogucki; it appears Connell will take the reins here after all.  The issue is whether the Convening Authority’s powers encompass those of a “principal officer of the United States,” such that he or she might require presidential nomination and Senate confirmation. Obviously, the Convening Authority was not nominated and confirmed; thus, Connell points to a structural problem that, in his view, requires the case’s dismissal.  To make his point, he runs through the vast, vast powers of the Convening Authority.  No officer has ever wielded such authority without nomination and Senate confirmation, Connell argues.

Thus we must distinguish between a “principal” and an “inferior” officer, and Connell does.  Under case law, he argues, the former can be said to have broad discretionary powers (check), and usually isn’t subject to direct supervision (check) or removal for cause (check).  Those criteria being met, Connell says, the Convening Authority should have been subject to the Senate’s advice and consent---but wasn’t.  He adds that the legal test here is function, not form; it doesn’t matter, therefore, that Congress says the Convening Authority has been “designated” as an inferior officer.  What matters is what powers Congress actually gave to the Convening Authority.  And here, they gave a lot; too much, in fact, to evade the Constitution’s procedures for democratic accountability.  A few queries land in Connell’s lap, one about whether the Convening Authority’s powers can be usurped by, say, the Secretary of Defense, in situations when the Convening Authority dies.  Well, answers Connell, SecDef doesn’t jump in as Convening Authority; instead, an Acting Convening Authority is named.  Indeed, an Acting person was named just recently, upon Rear Admiral Bruce MacDonald’s departure.

The Chief Prosecutor commends defense counsel for his presentation---and then proceeds to critique its many flaws.  A biggie: the defense simply misconstrues the relevant law, casting an “inferior” officer as a “principal” one.  Another biggie: the Convening Authority exercises authority delegated to him by a cabinet officer, the Secretary of Defense.  Don’t take Martins’s word for it; instead have a look, he says, at Justice Scalia’s concurrence in the Weiss case.  And we can’t always reason from analogy here, either, Martins argues.  An Army Colonel on the Court of Appeals for the Armed Forces, for example, is confirmed by the Senate---but as a statutory matter, not because his duties of necessity require appointment and confirmation under the Constitution.

A related point from Martins: it is absolutely fine for Congress to vest a department head with the power to designate inferior officers---which is precisely what happened here.  The MCA gives the SecDef the power to designate the Convening Authority, and he did.  Martins, to be clear, doesn’t disagree with Connell’s functionality argument.  Still, though, the legislature can vest certain inferior appointments in people like Robert Gates, Leon Panetta, and Chuck Hagel---and did so lawfully in the MCA.  He finishes.

The defense passes on reply argument.  AE105 is thus submitted, pending consideration of AE031 per the court’s promise to Bogucki.