The D.C. Circuit's Mandamus Jurisdiction and the Legitimacy of the Military Commissions

It now appears that the next military commissions case in which the D.C. Circuit will hear oral argument is that of Abd al-Rahim al-Nashiri ("Nashiri"), with oral argument scheduled before an as-yet unnamed three-judge panel on Tuesday, February 10, 2015. And although the underlying "merits" issue in Nashiri is hyper-narrow (whether two of the three judges set to hear the government's interlocutory appeal to the Court of Military Commission Review in Nashiri's case were unconstitutionally appointed), the jurisdictional question the Court of Appeals must resolve first (whether it can even reach those merits at this stage) is potentially far more significant both to the practice before the commissions and their deeper legitimacy. Below the fold, I endeavor to explain both why the jurisdictional question is so important, and how, in my view, it should be resolved. I.  Background First, by way of background: The merits question at stake in the current Nashiri appeal is whether the military commission may try Nashiri for his alleged role in the 2002 bombing of the MV Limburg. The trial judge ruled in August that it may not, because the government had failed to establish a sufficient nexus between the attack on a French tanker and the non-international armed conflict between the United States and al Qaeda. For a detailed analysis of the merits of that issue, see Marty Lederman's exhaustive post from October. The government, as was its right, took an immediate, "interlocutory" appeal of the trial judge's ruling to the Court of Military Commission Review (CMCR), the intermediate military appellate court created by the Military Commissions Act of 2006 (MCA). Although Nashiri moved to dismiss the appeal as untimely, his principal objection was to the composition of the CMCR panel detailed to hear the government's appeal, which included one civilian judge (Judge Silliman) and two military judges (Judges Krauss and Weber). According to Nashiri, the participation of the military judges violated the President's Article II powers under both the Commander-in-Chief Clause and the Appointments Clause. (For an excellent analysis of the merits of the Article II issue, see this post by Marty from last Tuesday). Where things get interesting is in the vehicle through which Nashiri sought to disqualify Judges Krauss and Weber--through a petition for a writ of mandamus from the D.C. Circuit. Although the Court of Appeals ruled in 2008 that it lacked jurisdiction under the MCA to entertain a military commission defendant's direct appeal from anything other than a "final judgment" reviewed by the CMCR, it has yet to resolve whether--and under what circumstances--it may review military commission proceedings via an extraordinary writ of mandamus under the All Writs Act. And on November 12, a divided panel of the D.C. Circuit stayed the proceedings before the CMCR in order to resolve that jurisdictional question (and, if it has jurisdiction, the merits of Nashiri's disqualification challlenge). That order provoked a dissent from Judge Brett Kavanaugh--who argued both that the D.C. Circuit lacked jurisdiction to issue such relief, and that it therefore lacked jurisdiction to even issue an administrative stay in order to reach the jurisdictional question. Those two issues--the D.C. Circuit's jurisdiction to issue writs of mandamus to the military commissions and the merits of Nashiri's disqualification challenge--are what will be argued to a (presumably different) three-judge panel in February. II.  The D.C. Circuit's Mandamus Jurisdiction Over the Military Commissions I've previously written at great length about both the general question of the scope of interlocutory review under the MCA and the specific shortcomings of Judge Kavanaugh's dissent in Nashiri. But since that post, the government has filed its opening brief in the D.C. Circuit, which is available here. In a nutshell, the government's jurisdictional argument rests on two interrelated claims:

1. The D.C. Circuit lacks jurisdiction to issue writs of mandamus because the MCA authorizes the Court of Appeals to act "only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the United States Court of Military Commission Review." The word "only," in the government's view, limits the Court of Appeals' power to act in other respects, even through writs of mandamus; and
2. Even if the D.C. Circuit would otherwise have jurisdiction to issue a writ of mandamus, 28 U.S.C. § 2241(e)(2) takes that jurisdiction away insofar as it precludes jurisdiction over "any [non-habeas] 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."

I've already said quite a bit about the second argument (which also figured prominently in Judge Kavanaugh's dissent), and why (1) mandamus isn't "any other action"; (2) the contrary reading ignores the repeal of a different MCA provision (10 U.S.C. § 950j(b)) that would far more clearly have barred Nashiri's claim; and (3) the contrary reading would also raise unnecessary constitutional questions. Nothing in the government's brief really responds to any of those points, so I won't elaborate upon them here. But the government's first argument requires a bit more unpacking. The Supreme Court has long insisted that the All Writs Act does not create jurisdiction. What that means in practice is that mandamus as an appellate device has been justified as a writ in aid of the appellate court's existing appellate jurisdiction--to vindicate that jurisdiction in cases in which a lack of statutory jurisdiction to appeal at that moment would effectively insulate the lower-court decision from appellate review in general. In ordinary civil cases, that appellate jurisdiction includes the Court of Appeals' plenary review of a final judgment in the trial court--and so jurisdiction to issue a writ of mandamus will usually be available throughout the proceeding; the key instead is whether the petitioner is entitled to such extraordinary relief on the merits--that is, whether waiting for the statutory appeal to ripen will necessarily frustrate the petitioner's right to relief (as, for example, in cases in which the petitioner claims a right not to be tried, or to not disclose certain evidence, etc.). The government's argument in Nashiri is that the D.C. Circuit's appellate jurisdiction over final judgments of military commissions is far narrower than its ordinary appellate jurisdiction--since 10 U.S.C. § 950g(d) allows it to act "only with respect to" final judgments. Thus, it argues, an interlocutory writ of mandamus can't be "in aid of" the D.C. Circuit's appellate jurisdiction because it's necessarily not with respect to matters the D.C. Circuit is empowered to hear by statute. This argument may well seem superficially attractive, but it suffers from two separate--but equally fatal--flaws: First, as a matter of precedent, the government's argument can't be squared with how courts have interpreted similar language in other contexts. Specifically, the D.C. Circuit's jurisdiction under the MCA is modeled on the jurisdiction of the Courts of Criminal Appeals (CCAs) in the court-martial system. And the statute conferring appellate jurisdiction upon the CCAs--Article 66 of the UCMJ, 10 U.S.C. § 866--includes almost the exact same language as § 950g(d):

the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.

Notwithstanding this narrow language, the Court of Appeals for the Armed Forces (CAAF) has expressly (and repeatedly) upheld the power of the CCAs (and CAAF itself) to issue writs of mandamus and other extraordinary relief at interlocutory stages of the proceedings--before there are any findings or sentence for the CCAs to act upon. As CAAF explained just last year, "To establish subject-matter jurisdiction, the harm alleged must have had 'the potential to directly affect the findings and sentence,'" it need not have arisen directly from the findings and sentence. I've elsewhere criticized CAAF for not recognizing the ability of non-parties to military proceedings (e.g., the media) to pursue similar relief, but where the petitioner is the defendant, CAAF's jurisprudence is crystal-clear. Thus, the government's argument in Nashiri is in direct conflict with the law that governs in the court-martial system--which is based upon the same statutory language on which the D.C. Circuit's appellate jurisdiction over the military commissions was modeled. In other words, the government is arguing in Nashiri to create a circuit split. Second, even as a matter of first impression, CAAF's interpretation of Article 66 makes sense. After all, the All Writs Act empowers any court created by Congress (which the military commissions and CMCR clearly are) to issue writs "in aid of" their jurisdiction. If a defendant has a meritorious challenge to his amenability to military jurisdiction, and the appellate court has jurisdiction over that challenge at least at the final judgment stage, then it should follow that a writ of mandamus is "in aid of" that jurisdiction even if sought before final judgment. The harder question is whether mandamus is appropriate--which turns on whether the right can't meaningfully be vindicated at the post-conviction stage. But that's a merits objection, not a jurisdictional one. The only jurisdictional question should be whether the petitioner's claim is one that could be within the appellate court's jurisdiction at some point. That's how CAAF has correctly understood Article 66--and how the D.C. Circuit should understand the MCA. III.  Why the D.C. Circuit's Mandamus Jurisdiction Matters If you've made it this far, you may be wondering why so much ink has been spilled on the D.C. Circuit's mandamus jurisdiction vis-a-vis the military commissions--especially if, as seems likely, Nashiri's claims on the merits are unlikely to prevail. The answer is two-fold: First, the Nashiri panel will have to reach the jurisdictional issue anyway, since the Supreme Court has expressly repudiated the doctrine of "hypothetical jurisdiction"--where courts assume without deciding that jurisdiction exists in order to reach and the (easier) merits question and resolve it in favor of the party opposing jurisdiction. Thus, one way or the other, Nashiri is going to answer this question. Second, there's a direct link in my view between the jurisdictional question in Nashiri and the legitimacy of the commissions. After all, one of the reasons why the Supreme Court has increasingly come to view the court-martial system as a reliable, independent judicial enterprise is because of the extent it has come to resemble its civilian counterparts--especially in its ability to provide collateral interlocutory and post-conviction relief. That was the heart of the matter in the Supreme Court's 2009 decision in United States v. Denedo, after all. The more that the commissions resemble courts-martial in their structure--and the more that defendants have at their disposal the same mechanisms to vindicate their rights that are available to those facing charges in courts-martial and/or the civilian courts--the more the government should be able to defend the individual ways in which the commissions depart from courts-martial and civilian criminal practice. That's why I've never understood the government's hostility to the jurisdictional arguments in cases like Nashiri, even if I understand (and, in many instances, agree with) its opposition on the merits. All of which is to say, stay tuned.