Al-Nashiri's Reply on the Appointments Clause

In December, attorneys for the Guantanamo detainee filed their reply brief in the United States Court of Appeals for the D.C. Circuit.  (The pleading is dated December 15, but a cleared version was not approved for public release until New Year's Eve, evidently.) The issue, as readers know, is whether two judges of the Court of Military Commission Review, who were assigned to hear a government appeal in Al-Nashiri's criminal case, were appointed in violation of the Constitution. From the reply:

One of the principal reforms Congress made in the Military Commissions Act of 2009, Pub. L. No. 111-84 (2009) ("2009 Act"), was the re-establishment of the Court of Military Commission Review ("CMCR") as a proper court. To ensure that the CMCR was capable of deciding the most controversial national security cases to come before any American court in decades, Congress ensured that its judges were independent from Executive Branch influence and control. Congress, however, also carried over a provision from the Military Commissions Act of 2006, Pub. L. No. 109-366 (2006) ("2006 Act"), that authorized the Secretary of Defense to assign military officers to serve on the CMCR ad hoc. But Congress only did so on the mistaken belief that it could give these officers, once so assigned, the same independence from Executive influence that the other judges on the CMCR enjoy. This Court should issue a writ of mandamus to disqualify Lieutenant Colonels Weber and Ward pursuant to its statutory jurisdiction over the CMCR. Because military officers cannot be made independent from their civilian chain-of-command, their service on the CMCR is incompatible with how Congress intended that court to function. And even if Congress can make mid-level military officers into Executive Branch officials, it cannot do so by granting the Secretary of Defense the unilateral authority to elevate these necessarily inferior officers to the principal office of federal appellate judge.

Oral argument is set for February 10.