The Misbegotten Court of Military Commission Review

Anyone following the Guantánamo military commissions would do well to read Bob Loeb and Helen Klein's trenchant take on last Friday's D.C. Circuit decision in In re Khadr, in which the Court of Appeals declined to issue a writ of mandamus even while agreeing that there may be a serious question "whether the civilians who serve as judges on the U.S. Court of Military Commissions Review may continue to engage in the part-time practice of law and, if so, the circumstances under which they may do so." As Bob and Helen rightly noted, not only is this the second time in less than a year that the D.C. Circuit has identified serious structural problems with the Court of Military Commission Review (and implored Congress and the President to fix those problems), but Friday's decision is "a symptom of a broader problem. At nearly every turn, the hastily crafted military commission system shows that being novel and untested comes at a great cost in time, resources and ultimately credibility."

Bob and Helen are clearly correct that the decision in Khadr is yet another blow to the credibility and legitimacy of the military commissions. Moreover, as in the Court of Appeals' June 2015 ruling in Nashiri, the opinion comes from the pen of one of the D.C. Circuit judges least likely to be sympathetic to the commission defendants' claims on the merits. But in the post that follows, I want to offer a more specific variation on Bob and Helen's general theme: What Friday's ruling really underscores, once again, is how misbegotten an experiment the Court of Military Commission Review, specifically, has turned out to be. In a nutshell, not only does the CMCR suffer from inherent structural flaws that the political branches seem uninterested in fixing, but its substantive role in the military commission process has turned out to be not only woefully inefficient, but affirmatively counter-productive from both the government's and the defendants' perspectives. Simply put, the CMCR has become an object lesson in how not to create new non-Article III federal courts — and an expensive one, at that.

I. The CMCR's Structural Shortcomings

Congress created the CMCR in the Military Commissions Act of 2006 as part of a far broader reorganization of judicial review of military commissions. At its core, and in response to the Supreme Court's decision in Hamdan v. Rumsfeld, the MCA sought to replace habeas review of military commissions (which, as in Hamdan, could be prior to trial) with post-conviction appellate review — the first time Congress had ever provided for direct appellate review of a military commission. But rather than simply fold the military commissions into the existing appellate review structure for general courts-martial (with intermediate review by the service branch Courts of Criminal Appeals, or CCAs, followed by discretionary review by the Article I Court of Appeals for the Armed Forces, followed by certiorari review by the U.S. Supreme Court), Congress split the difference. Thus, the MCA curiously (and, in some corners, controversially) gave the civilian Article III D.C. Circuit supervisory control over the military commissions, but with an intermediate Article I appeals court (the CMCR) in between. And with some minor differences (that were mostly eliminated by the 2009 Military Commissions Act), the CMCR's jurisdiction and composition was modeled on the CCAs in the court-martial system — with both civilian and military judges eligible to serve on the court. In other words, Congress created a hitherto-unprecedented system in which a military commission conviction would first be appealed to a brand-new Article I military appeals court, then to an Article III civilian Court of Appeals.

Structurally, this difference-splitting arrangement created significant questions as to both the civilian and military judges on the CMCR. In Nashiri, the D.C. Circuit considered the Appointments Clause issue arising from the role of military judges on the CMCR — since those judges are not nominated by the President and confirmed by the Senate to that position, specifically, but rather to their more general commission as a military officer. As I've explained at length previously, that's not a problem for the CCAs, because their judges are quite clearly "inferior" Executive Branch officers (if for no other reason than because they are subject to the appellate supervision of the Court of Appeals for the Armed Forces, which is "located for administrative purposes only in the Department of Defense"). But the CMCR's judges are not subject to appellate supervision by other jurists "located . . . in the [Executive Branch]," and so are quite possibly "principal" officers for constitutional purposes, who probably must be nominated by the President and confirmed by the Senate to that position, specifically. That's why, even in deying relief in Nashiri, Judge Henderson went out of her way to urge "the President and the Senate . . . to put to rest any Appointments Clause questions regarding the CMCR's military judges" by specifically renominating them and reconfirming them. Even though that suggestion led to a stay of the proceedings before the CMCR in Nashiri, that stay, as Bob and Helen noted, has now been lifted — after no signs of movement from the political branches over the ensuing 11 months,.

Whereas Nashiri highlighted the structural problem with the role of military judges on the CMCR, Khadr involves a separate issue about the civilian judges — who are nominated by the President and confirmed by the Senate to the CMCR, specifically. Because the CMCR is not necessarily a full-time concern, the question Khadr raised is whether the CMCR's civilian judges are allowed to otherwise engage in the practice of law while serving on the CMCR. Although the MCA is silent on this issue (and on the compensation and tenure of the CMCR's civilian judges, and the conditions under which they can be removed), the Secretary of Defense has designated them to be "Highly Qualified Experts" and "special government employees," which both determines their government compensation and expressly allows them to pursue outside remuneration under the relevant federal statutes.

The problem with this arrangement is a federal criminal statute, 18 U.S.C. § 203, which prohibits covered federal employees from receiving compensation for representing parties in claims either against or substantially involving the United States. Although the government argues that CMCR judges are exempted from § 203 by dint of their designation as "special government employees," that exemption does not apply to any employee of the judicial branch — which the same statute defines as "any court created pursuant to Article I of the Constitution." And although Congress has blurred that distinction for senior CAAF judges (who are expressly identified as "special government employees" by 10 U.S.C. § 942(e)(4)), that specific carve-out only underscores the more general prohibition on judges serving on any court created by Congress as "special government employees." As Judge Kavanaugh put it in Khadr, "this is a serious issue — one that Congress and the Department of Defense would be wise to address and resolve promptly, either by expressly barring the civilian judges on the U.S. Court of Military Commission Review from the private practice of law or by making crystal clear that the civilian judges on the Court may serve as special government employees and continue their part-time private practice of law."

Whatever the merits of the Appointments Clause issue vis-a-vis military CMCR judges in Nashiri, or the § 203 issue vis-a-vis civilian CMCR judges in Khadr, the relevant point for present purposes is how they both have their origins in the same ill-conceived legislative initiative, i.e., Congress's attempt to split the difference between a civilian and a military appellate review scheme for the military commissions. Had Congress simply opted for full-throated military appellate review, there would be no Appointments Clause issue in Nashiri, and Congress might have remembered to confer the same "special government employee" status on CMCR judges that it's provided to senior CAAF judges. And had Congress opted for full-throated civilian appellate review (perhaps by simply bypassing the CMCR altogether and sending military commission appeals directly to the D.C. Circuit), or by leaving habeas as the principal mode of appellate review (substituting the D.C. district court for the CMCR), neither of these issues would have arisen. Thus, both of the major structural problems with the CMCR can be directly traced to the same dubious decision re: institutional design.

II. The CMCR's Substantive Shortcomings

But lest the weeds of the Appointments Clause and § 203 issues in Nashiri and Khadr obscure the broader forest, the CMCR's structural shortcomings pale in comparison to its inexcusable inefficiency (even before these structural issues were raised) and its troubling substantive jurisprudence. Bobby and I both wrote at some length about the preposterous amount of time it took the CMCR to hear and decide its first two post-conviction appeals — in the Hamdan and al-Bahlul cases. But the delay is especially galling considering what happened once the CMCR's unanimous affirmances of both convictions were appealed to the D.C. Circuit: In Hamdan, the Court of Appeals unanimously reversed on the ground that Hamdan's material support conviction violated ex post facto principles enmeshed within the MCA itself; and in al Bahlul, the en banc Court of Appeals held, under plain error review, that military commission prosecutions of solicitation and material support based upon pre-MCA conduct (which the CMCR had unanimously upheld under de novo review) violated the Ex Post Facto Clause.

Of course, the litigation in al Bahlul over the conspiracy charge remains ongoing — and it's possible that the en banc Court of Appeals will ultimately affirm that conviction, albeit almost certainly under plain error review. But the larger point for present purposes is the simply stunning disconnect between the analysis of the CMCR, none of the judges of which raised so much as a scintilla of doubt about the constitutionality of these convictions, and that of the D.C. Circuit, which all-but held that no reasonable jurist could have rejected Bahlul's Ex Post Facto Clause challenge to his solicitation and material support convictions. Under the MCA, the D.C. Circuit owes no formal deference to the CMCR's legal analysis; what al Bahlul underscores is that there's no practical deference, either — perhaps deservedly so.

Beyond the specific question of military commission jurisdiction over domestic offenses, the CMCR's track record hardly looks better. Indeed, even though the CMCR is unquestionably a "court[] established by Act of Congress" for purposes of the All Writs Act, one of its rules, for its first nine years of existence, expressly foreclosed any application for extraordinary relief — presumably on the theory, best expressed in a thoughtful concurring opinion by Judge Silliman, that the court lacked the jurisdiction to entertain such applications. That conclusion, too, was overturned by a unanimous D.C. Circuit panel in Nashiri, with Judge Henderson making quick work of the government's argument to the contrary (and then expressing grave concerns about the Appointments Clause issue, to which the CMCR had given the back of its hand). To be sure, the result of the jurisdictional holding in Nashiri should be a lot more work for the CMCR, which may allow it to redeem its substantive reputation at least marginally. But the larger point is how pointless the CMCR has been to date, since all it has really accomplished in these cases is to (1) slow them down; while (2) answering the questions presented in ways that have had little bearing (other than proving deeply vulnerable) on subsequent appeal.

III. The Broader Lessons Congress Should Learn from the Failed CMCR Experiment

To be clear, I don't mean to impugn any of the CMCR's judges, specifically. As I hope is clear from the above post, the real culprit here, in my view, is Congress, which simply didn't think through the CMCR nearly as much (or as well) as it should have back in 2006. If its goal was to provide useful military appellate review that would make the job of the civilian courts that much easier in reviewing the work of the military commissions, Congress failed. If its goal was to provide an extra check on the military commission trial courts by having experienced military appellate judges efficiently and accurately supervise the work of their trial court brethren, Congress failed. If its goal was to bolster the appellate review already available to our own servicemembers by adding a CCA-like intermediate appellate court to the D.C. Circuit's overall supervision, Congress failed. Indeed, the CMCR could only be considered a "success" if Congress's goal was either (1) to create a structurally flawed, woefully inefficient, and substantively inaccurate mechanism to slow down military commission cases; or (2) to provide interesting fodder for federal courts professors. Somehow, I doubt that the 109th Congress had either of these goals in mind. And yet, as a result, neither the government nor the defendants have benefitted from these shortcomings. From the government's perspective, the CMCR has dramatically slowed down the military commissions — depriving the government of the ability to move forward with any confidence about the commissions while only further highlighting the sharp contrast with far-more-expeditious civilian criminal courts. And from defendants' perspective, the CMCR has delayed, in some case by years, appellate remedies to which the Court of Appeals has suggested they were entitled — and vindication of statutory (and, in al Bahlul, constitutional) rights that had been deprived by the trial courts.

Nor is the CMCR the principal basis on which we can and should question the legitimacy and utility of the military commissions, which have plenty of problems wholly unrelated to their intermediate appellate court — problems that would not by any stretch be solved (although might perhaps be ameliorated) by a more rigorous and structurally sound appellate process. Even without the CMCR, there'd still be plenty to debate over the legality and policy wisdom of the commissions, especially as compared to the ability to try terrorism suspects in Article III civilian courts. And it's not like the CMCR is any way responsible for the concerns over detainee abuse and/or the pervasive secrecy surrounding the commissions. Indeed, my point is not that the CMCR's shortcomings are a central part of the broader military commission narrative. Rather, it's that the CMCR's shortcomings are a narrative unto themselves — and not only explain part of why the commissions have struggled so mightily to thrive, but also why we're still answering basic questions about the commissions (and the detainees) even as the MCA's tenth anniversary in October is quickly approaching.

Ultimately, then, what the misbegotten CMCR should teach us, at bottom, are two lessons for non-Article III courts going forward: First, in the specific context of the military commissions, Congress really ought to fix the messes it has made (and Judges Henderson and Kavanaugh have gone a long way toward explaining how the structural problems identified above can and should be remedied). Second, and more generally, Congress should think twice, in the future, before creating new non-Article III courts that try to blend existing structures of both Article I and Article III tribunals. There are reasons why these institutions have historically been kept largely separate from each other — and those reasons don't all sound in policy.