Argument Recap: The Critical Difference in How al-Nashiri Loses

If one thing was clear from Tuesday morning's 61-minute argument before the D.C. Circuit in In re al-Nashiri, in which a Guantánamo military commission defendant seeks to challenge on constitutional grounds the composition of the intermediate Court of Military Commission Review (CMCR) assigned to hear the government's interlocutory appeal in his case (which I previewed here), it was that the Court of Appeals will almost certainly not reach the merits of al-Nashiri's Appointments Clause and Commander-in-Chief Clause challenges to to the CMCR at this preliminary stage in the litigation. (The audio will be available later today at this link.) Instead, the real question to emerge from the argument is whether the court will dismiss al-Nashiri's petition for lack of jurisdiction, or deny it on the "merits"-based ground that such extraordinary relief simply isn't necessary at this stage, leaving these claims for a potential future post-conviction appeal. But whereas the result in al-Nashiri will be the same either way--the case will be returned to the CMCR for resolution of the government's interlocutory appeal--these two different paths to the same outcome would have starkly different consequences for the military commissions going forward. If the panel holds merely that Nashiri's claims, specifically, can and should be raised on a post-conviction appeal, that would leave open for future cases whether and in what circumstances a military commission defendant could seek mandamus relief. If, in the alternative, the panel holds that there's no mandamus jurisdiction in general over the commissions, such a result would not only doom al-Nashiri's claims, but would also bar anything other than post-conviction challenges to the commissions in cases in which the merits of the defendant's challenge and the lack of alternative remedies are far more plain. I.  Petitioner's Argument Although Michel Paradis, counsel for al-Nashiri, opened his presentation by attempting to walk through the merits of the Petitioner's Commander-in-Chief Clause, he was quickly steered to the threshold procedural questions by Judge Pillard, who focused her questioning on "why now"--why is mandamus appropriate if al-Nashiri's claims can be resolved on post-conviction appeal--and "do we have the power" to even reach the merits of al-Nashiri's claims. As Judge Pillard pointed out, no matter what happens in the CMCR (however it is constituted), al-Nashiri will still be facing capital charges before the commission, and will still have the right to appeal any conviction back to the CMCR--and, from there, to the D.C. Circuit. Paradis' best response focused on sentencing--and the extent to which military sentencing, unlike civilian sentencing, doesn't return separate sentences for each offense. Thus, Paradis posited, if the CMCR sides with the government in its interlocutory appeal and restores to al-Nashiri's prosecution those charges arising out of the bombing of the M/V Limburg, his entire sentence would be vulnerable on post-conviction appeal insofar as it was inseparably based upon charges approved by the (allegedly unconstitutional) CMCR. As Judge Pillard responded, though, that's not a burden on al-Nashiri; it's a burden on the government--and perhaps a chance they should be allowed to take. From al-Nashiri's perspective, he still goes through a capital trial either way. Turning to why the Court of Appeals even has jurisdiction to issue a writ of mandamus, again it was Judge Pillard who led the questioning, focusing on the government's reading of the "non-habeas" jurisdiction-stripping provision of the Military Commissions Act of 2006, 28 U.S.C. § 2241(e)(2). Although there are several independent reasons why the government's jurisdictional argument is likely unavailing, Paradis rested almost entirely on the view that an earlier D.C. Circuit decision--the 2008 ruling in Belbacha v. Bush--already settled the court's power to issue writs of mandamus notwithstanding 28 U.S.C. § 2241(e)(2). Tellingly, though, when Paradis reserved his remaining time, he had received no questions whatsoever about the merits of al-Nashiri's Appointments Clause claim. II.  Respondent's Argument Arguing on behalf of the government, John DePue's 34-minute presentation repeatedly (if not dogmatically) hammered home two points: the burden on petitioners is especially high in mandamus cases; and the Court of Appeals lacks jurisdiction in any event. Perhaps tipping her hand, Judge Rogers asked DePue to concede that al-Nashiri would be able to bring these claims back before the D.C. Circuit on a post-conviction appeal, to which DePue responded in the affirmative. Judge Pillard turned DePue to al-Nashiri's counterarguments on jurisdiction, including Belbacha. DePue responded (effectively, if not entirely clearly) that Belbacha was a habeas case--and so there may have been reasons to be more tolerant of extraordinary relief in those circumstances than in the context of a non-habeas military commission appeal. But, in his words, the plain text of the MCA (barring "any other action") otherwise compels the conclusion that the Court of Appeals lacks jurisdiction. Trying to change the subject, Judge Pillard asked DePue why it was in the government's interest to wait to have the CMCR's constitutional validity resolved until after it hands down a series of judgments that could potentially infect subsequent commission proceedings. DePue's response (if one can call it that) was that the Court of Appeals lacks jurisdiction, and Congress in the MCA intended to avoid piecemeal litigation arising out of the commissions (never mind that, as Paradis pointed out on rebuttal, this particular "piecemeal" suit began with the government's interlocutory appeal to the CMCR). Finally, after 21 of his 25 minutes had elapsed, DePue turned to the merits, arguing that al-Nashiri's Appointments Clause challenge is foreclosed by the Supreme Court's decision in Weiss. Although Judge Pillard attempted to push DePue to take a position on whether the CMCR judges are "principal" or "inferior" officers for purposes of the Appointments Clause, DePue demurred, suggesting that, either way, Weiss--and its "germaneness" approach--should be the governing standard. III.  Petitioner's Rebuttal Paradis used his seven-minute rebuttal rather effectively, highlighting how (1) Belbacha may well settle the jurisdictional question; and (2) on the merits, there a series of ways in which the CMCR is fundamentally different from the Courts of Criminal Appeals (CCAs) in the civilian military justice system--the structure of which the Supreme Court blessed in Weiss and Edmond. As Paradis concluded, Congress made one of two mistakes in 2009 when it tried to improve the independence of the CMCR vis-a-vis the Executive Branch: It either gave (1) too much independence to the military judges, in violation of the Commander-in-Chief Clause; or (2) too much power to the military judges without a separate appointment, in violation of the Appointments Clause. IV.  Takeaway Ultimately, the lack of detailed questions and colloquy on the merits questions--and the tenor of both Judge Rogers' and Judge Pillard's questions (Judge Henderson did not ask a question of either advocate)--makes it seem quite unlikely that the panel will reach the merits of al-Nashiri's constitutional claims. What's far harder to predict solely based upon the oral argument is whether the reason for doing so will be because the panel concludes that the D.C. Circuit lacks jurisdiction, or whether it concludes, instead, that the court has jurisdiction, but that al-Nashiri simply can't show that relief is necessary at this stage of the proceedings, as opposed to on a post-conviction appeal, since his capital military commission trial will go forward either way. That's not to say that the Appointments Clause question isn't interesting and/or important--it is. But there seemed no sense of urgency from the three-judge panel to reach it now. At the same time, the jurisdictional question is hugely significant, since the government's theory would preclude the D.C. Circuit from ever exercising any kind of mandamus authority over the military commissions--limiting their review solely to appeals after final judgment. That may not seem like especially high stakes in al-Nashiri, but as I wrote back in December, one would think that the commissions' legitimacy is only helped to the extent that their decisions can be reviewed in the same manner as trial courts in both the civilian and ordinary military justice systems--where there's no question that mandamus jurisdiction would be available for these kinds of claims at this stage. Thus, even if al-Nashiri's claims are thrown out, a ruling that the Court of Appeals has jurisdiction to reach those claims, and just declines to exercise its discretion to issue such extraordinary relief, would still be an important step forward for the commissions--if not for al-Nashiri.