<em>al-Nashiri</em> Argument Preview: The CMCR's Appointments Clause Problem

Next Tuesday, a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Pillard, JJ.) is set to hear oral argument in In re al-Nashiri, the latest in a long-line of pre-trial disputes arising out of the Guantánamo military commission proceedings against Abd Al-Rahim Hussein Muhammed al-Nashiri, who is accused of involvement in two terrorist attacks and one attempted attack—most notoriously the 2000 bombing of the USS Cole that resulted in the deaths of 17 American sailors. More than any of the other cases before the commissions, Nashiri’s has been beset from the outset with unique (and uniquely thorny) substantive and jurisdictional questions—not the least of which is whether the United States was even engaged in an armed conflict at the time of the Cole bombing. But the questions the D.C. Circuit is being asked to answer next Tuesday are not limited to Nashiri’s case at all. Instead, Nashiri raises whether the D.C. Circuit has the power to issue a writ of mandamus to the intermediate Court of Military Commission Review (CMCR), and, if so, whether the means by which CMCR judges have been appointed violate the Appointments Clause or Commander-in-Chief Clause of Article II. In the process, Nashiri is, in many ways, a referendum on the CMCR—and, as such, a potentially critical moment for both the legitimacy and future of the Guantánamo military commissions. I.  Background There are, at the moment, three different appeals by Nashiri pending in the D.C. Circuit. Two (Docket #s 15-1023 and 15-5020) involve different challenges to Judge Roberts’s December 29 ruling abstaining from entertaining Nashiri’s pre-trial challenge to his military commission trial (a ruling I’ve critiqued here previously). But the appeal being heard next Tuesday (Docket # 14-1203) has its origins in a pre-trial ruling by the military commission in favor of Nashiri—dismissing the capital charges arising out of his alleged involvement in the 2002 bombing of the M/V Limburg, a French tanker, on the ground that France was not a party to the armed conflict between the United States and al Qaeda at the time of the attack. As is its right (since double jeopardy would preclude a post-trial appeal), the government took an interlocutory appeal to the CMCR under 10 U.S.C. § 950d. It’s at that point that things got interesting. After the CMCR rejected separate motions to (1) disqualify the military judges serving on the panel; and (2) dismiss the government’s interlocutory appeal as untimely, Nashiri then filed a petition for a writ of mandamus and a motion to stay the proceedings before the CMCR in the D.C. Circuit. The crux of his mandamus claim is that the means by which some of the CMCR’s judges are appointed is unconstitutional (and thereby deprives the CMCR of jurisdiction over the government’s appeal). On November 12, a divided panel of the D.C. Circuit granted a stay “to give the court sufficient opportunity to consider the mandamus petition and should not be construed as a ruling either on the jurisdictional question presented by the petition or on the merits of the petition.” Notwithstanding Judge Kavanaugh’s dissent, which argued that the Court of Appeals lacked jurisdiction over Nashiri’s petition (and therefore also lacked jurisdiction to issue a stay), that opportunity culminates with next Tuesday’s oral argument. II.  “Jurisdiction” I’ve written previously at some length about why, contra Judge Kavanaugh, the D.C. Circuit has statutory jurisdiction to issue writs of mandamus to the CMCR. In a nutshell, 10 U.S.C. § 950g invests the Court of Appeals with appellate jurisdiction over “a final judgment rendered by a military commission (as approved by the convening authority and, where applicable, as affirmed or set aside as incorrect in law by the United States Court of Military Commission Review) under [the MCA].” And the All Writs Act, 28 U.S.C. § 1651, empowers the Court of Appeals to issue “all writs necessary or appropriate in aid of [its] jurisdiction[],” which has routinely been interpreted to authorize writs of mandamus in advance of a final judgment in order to “protect” the appellate court’s jurisdiction. And any argument that § 950g is uniquely narrow in the final jurisdiction it confers upon the D.C. Circuit is overtaken by a bevy of case law interpreting similarly narrow language in Articles 66 and 67 of the Uniform Code of Military Justice (UCMJ) as not barring the regular military appellate courts from issuing such extraordinary relief prior to a final judgment. The only real complication in Nashiri is 28 U.S.C. § 2241(e)(2), the “non-habeas” jurisdiction-stripping provision of the MCA, which provides that “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States [as an enemy combatant].” But remember that the source of the D.C. Circuit’s jurisdiction in Nashiri is a separate provision of the MCA—10 U.S.C. § 950g. Unless § 2241(e)(2) overrides § 950g (which would make it almost certainly unconstitutional since it would thereby bar all appeals from military commissions), its plain language (“any other action”) can’t sweep in appeals, no matter the vehicle through which those appeals are perfected. (There are additional reasons why § 2241(e)(2) can’t be read the way Judge Kavanaugh interpreted it in his dissent from the stay, but I’ll refer interested readers to my earlier post for those.) Instead, what might appear to be the harder “jurisdictional” question for Nashiri is better understood as a “merits” question in the context of mandamus: Since mandamus is only available as a remedy of last resort, is Nashiri really without other remedies for advancing the same arguments? For example, why couldn’t he (1) seek mandamus if and only if the CMCR ruled for the government on the merits of the government’s appeal; or (2) challenge the CMCR’s composition as part of a post-conviction appeal—which would be mooted if he is ultimately acquitted? To understand Nashiri’s argument for why these alternatives are unavailing, we have to understand the nature of his challenge to the CMCR in a bit more detail. Before turning to those merits, though, it’s worth highlighting the D.C. Circuit’s 2003 decision in Cobell v. Norton, which emphasized the especial appropriateness of mandamus in the context of motions to disqualify lower-court judges—at least so long as the petitioner’s right to relief is “clear.” III.  The Appointments Clause Challenge At its simplest, Nashiri’s “merits” argument is a challenge to the inclusion of military (as opposed to civilian) judges on the CMCR. (Although Nashiri has arguments under both the Appointments Clause and the Commander-in-Chief Clause, the latter are far weaker, as Marty Lederman has explained. Thus, I’ll focus here on the Appointments Clause issue.) Before turning to his objections, let’s start with the statutory structure of the CMCR, which is set forth in 10 U.S.C. § 950f. The CMCR must have at least three judges (since it must sit, at a minimum, as a three-judge panel), and those judges can either be “persons who are appellate military judges” assigned to the CMCR by the Secretary of Defense or “additional judges” appointed by the President and confirmed by the Senate. In the specific context of the government’s interlocutory appeal in Nashiri, two of the three judges assigned to the case are military judges; the third is a civilian judge. Superficially, at least, this looks a lot like the well-established structure of the Courts of Criminal Appeals (“CCAs”)—the intermediate appellate courts in the court-martial system. And in Edmond v. United States, the Supreme Court blessed this structure based upon its conclusion that CCA judges are “inferior officers” for purposes of the Appointments Clause. Thus, some of its judges could be appointed by Executive Branch officials other than the President (in Edmond, the Secretary of Transportation); while others could be serving military officers (who had already been nominated by the President and confirmed by the Senate). And a separate Supreme Court decision—Weiss v. United States—held that there’s no Appointments Clause problem with “reassigning” military officers to serve as CCA judges because serving as a CCA judge was “germane” to the duties of a military officer, in general. The problem, Nashiri argues, is that, unlike their CCA counterparts, CMCR judges are not inferior officers for purposes of the Appointments Clause. Rather, they are more analogous to judges of the Court of Appeals for the Armed Forces (CAAF), who Justice Scalia strongly implied in Edmond to be “principal officers,” because, among other things, their decisions are not reviewable by other Executive Branch officers (see especially footnote 2 of Edmond and the accompanying text). In other words, Nashiri’s Appointments Clause argument focuses on the fact that the CMCR has the final say for the Executive Branch, since its decisions are only reviewable by entities unquestionably located in the judicial branch (to wit, the D.C. Circuit and Supreme Court). And in Edmond, Justice Scalia found no constitutional problem with the CCAs largely (if not entirely) because “the judges of the Court of Criminal Appeals have no power to render a final decision on behalf of the United States unless permitted to do so by other executive officers.” The judges of the CMCR do have that power—and therein lies the rub. Of course, civilian judges of the CMCR are already nominated by the President to the CMCR, and confirmed by the Senate. Thus, whether they are principal officers or not, the presence of civilian judges on the CMCR satisfies the Appointments Clause. The problem is the military judges. Yes, they’re nominated by the President and confirmed by the Senate, but (1) as inferior officers; and (2) not specifically to their position as CMCR judges. As Marty Lederman has explained at some length, the Supreme Court’s response to reassignment of already-appointed officers historically has been a notoriously vague rule of “germaneness”—that the Appointments Clause is satisfied so long as the new assignment is “germane” to the duties of the office to which the individual was actually nominated and confirmed. That’s why Weiss found no problem with the reassignment of military officers to serve as military trial and CCA judges. But Weiss dealt only with a situation in which an inferior officer was reassigned to duties as a judge qua inferior officer. Weiss says nothing about reassigning an inferior officer to duties as a judge qua principal officer. Put another way, the specific Appointments Clause question raised in Nashiri is the same one that would arise if Congress were to provide for reassignment of military officers to serve as judges on the CAAF (who, under current law, must be nominated by the President and confirmed by the Senate to that court, specifically). And that’s a terribly messy—and heretofore unanswered—constitutional question, made all the more ironic by Congress’s refusal, in the MCA, to subject the CMCR to appellate review by CAAF as opposed to the D.C. Circuit (which many have long assumed that this was a strategic move by Congress to put the commissions under the purview of the then-more-conservative D.C. Circuit). Had the CMCR been placed under the CAAF’s purview, Nashiri’s arguments would be foreclosed by Edmond and Weiss. Assuming Nashiri is correct that CMCR judges are principal officers, then, there are two questions that his petition raises as a matter of first impression:

• Does Weiss’s “germaneness” test extend to statutory reassignment of military officers to principal judicial positions, as well?
• Even if it doesn’t, is the Appointments Clause satisfied in this case specifically because the two military judges assigned to Nashiri’s panel were confirmed by Congress after the CMCR existed—and so it was already conceivable that they might serve as CMCR judges?

On a blank slate, my own view (contra Marty, among others) is that the answers to both (1) and (2) are no; that there’s a fundamental—and constitutionally significant—difference between administratively reassigning inferior officers to other inferior officer positions and administratively reassigning inferior officers to principal officer positions. The problem for Nashiri is the posture in which these questions arise—mandamus. If the petitioner’s right to relief must be “clear” in order for mandamus to be appropriate, then it’s hard to see how Nashiri prevails even if, all things being equal, his Appointments Clause argument is meritorious. But if the Court of Appeals takes seriously the concerns that motivated Cobell—and the potential train wreck that might follow from allowing panels of the CMCR that may lack any power to act in any case to hand down a series of decisions in the coming weeks, months, and years—then it may well decide to reach the merits on a clean slate, and to highlight an Appointments Clause question that may well attract the attention of the Supreme Court. Stay tuned...