An Unconventional Test Case for Civilian Control of the Military

President Trump’s appointment of Lt. Gen. H.R. McMaster to succeed Michael Flynn as National Security Advisor has generally been lauded, whether in recognition of McMaster’s strengths, his predecessor’s weaknesses, or both. One of the points that’s gotten surprisingly little attention, though, is his status as an active-duty military officer.

Don’t get me wrong—I am unaware of any legal impediment to an active-duty military officer serving as National Security Advisor (especially because, as noted below, the position neither requires Senate confirmation nor appears at levels I–V of the Executive Schedule), and General McMaster isn’t the first. Vice Admiral John Poindexter served just under a year as President Reagan’s National Security Advisor in the mid-1980s, and then-Lt. Gen. Colin Powell served as Reagan’s final National Security Advisor before he became Chairman of the Joint Chiefs of Staff under President George H.W. Bush. But combined with the appointments of General (ret.) John Kelly as Secretary of Homeland Security and General (ret.) James Mattis as Secretary of Defense (which, as readers know, required a waiver of the seven-year waiting period Congress had mandated before former soldiers could hold that office), there’s a somewhat discomfiting vibe of militarization among what has, historically, been an overwhelmingly civilian cohort.

As a recent report by the Congressional Research Service explains,

The principle of civilian control of the military places ultimate authority over U.S. armed services in the hands of civilian leadership, with civilian responsibility and control of the military balanced between the executive and legislative branches of the government. In some ways, the relationship between the military and the civil society it serves can be thought of as a paradox: the military, by its very nature, has coercive power that could threaten civil society. Yet without a sufficiently strong and capable military, civil society becomes vulnerable to attack, and the former might not be able to defend the latter. The United States has balanced this tension through formulating and promulgating the principle of civilian control of the military. The fact that this principle has remained relatively unchallenged over the course of American history is, by most accounts, remarkable.

One of the reasons why the principle has “remained relatively unchallenged” is because there have been remarkably few flashpoints in which it has been put to the test. But a crop of cases that have reached the Supreme Court this month (in which I’m counsel of record on behalf of the Petitioners) provide a rare counterexample. Even though the question presented in these cases is very specific, i.e., whether active-duty military officers can serve as “additional judges” on the U.S. Court of Military Commission Review (CMCR), and even though the cases have little to do with McMaster, Mattis, and Kelly, they present a more general opportunity for the Justices to revisit, and perhaps reinvigorate, this fundamental constitutional ideal.

1. Military Judges: The Basics

Before turning to the specifics of the current cases, a bit of background is in order. Under federal law, a military judge “shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member.” Thus, military judges are not usually “appointed” to their judgeships, but rather assigned (or detailed) thereto by the Secretary of their service branch. In the court-martial system, military judges can serve as trial judges on general (and some “special”) courts-martial, and as appellate judges on their service branch’s “Court of Criminal Appeals” (CCA). And in a pair of important decisions in the mid-1990s, the Supreme Court upheld this arrangement against an array of constitutional challenges. Specifically, the Court held that such military judges did not have to be “appointed” to their judgeships because (1) serving as a military judge was “germane” to their original appointment as a military officer; and (2) they were “inferior” Executive Branch officers, since, among other things, they were subject to appellate supervision by the Court of Appeals for the Armed Forces (CAAF), an Article I court that is located “for administrative purposes” in the Executive Branch (and the judges of which are, as such, principal Executive Branch officers).

When Congress enacted the Military Commissions Act, it sought largely—but, critically, not entirely—to replicate this model. Thus, military commissions would be subject to appellate supervision first by the non-Article III CMCR (which was modeled quite deliberately on the CCAs). But appeals from the CMCR would go not to CAAF, but to the Article III D.C. Circuit. As for the judges, as with the CCAs, CMCR judges could be military judges “assigned” to the CMCR by the Secretary of Defense under 10 U.S.C. § 950f(b)(2), or “additional” (civilian) judges “appointed” to the CMCR by the President and confirmed by the Senate under 10 U.S.C. § 950f(b)(3).

2. The Appointments Clause, Al-Nashiri, and the Aftermath

In its 2015 decision in Al-Nashiri, the D.C. Circuit suggested that this setup might well violate the Appointments Clause of Article II. After all, unlike their CCA counterparts, CMCR judges are not subject to similar appellate supervision by other Article II officers, and thus may well be “principal officers” whose appointment, under Myers v. United States, must come from the President by and with the advice and consent of the Senate. (I walked through the issues in somewhat more detail in a preview of the argument in Al-Nashiri.)

Although the “additional” (civilian) judges on the CMCR were so appointed, the “assigned” (military) judges were not. And even as the Court of Appeals in Al-Nashiri punted on the merits of this issue (holding that it was not an appropriate basis for mandamus relief), it offered some advice to the political branches. As Judge Henderson wrote for the D.C. Circuit, “the President and the Senate could decide to put to rest any Appointments Clause questions regarding the CMCR’s military judges . . . by re-nominating and re-confirming the military judges to be CMCR judges.”

As you can imagine, that’s (eventually) just what President Obama and the Senate did. Thus, in March 2016, President Obama “nominated” four military judges—Army Lt. Col. Paulette Vance Burton, Army Col. Larss G. Celtnieks, Army Col. James Wilson Herring, Jr., and Air Force Col. Martin T. Mitchell—to be “additional” CMCR judges. On April 28, the Senate confirmed all four, who promptly assumed their duties and took their oaths as CMCR judges, even as they continued to sit on the Army and Air Force CCAs, respectively.

Presumably, that’s where the story should have ended. But no one, apparently, had read 10 U.S.C. § 973(b)(2)(A).

3. The Dual-Officeholding Ban and the CMCR

Section 973(b)(2)(A) dates back to 1870, and, as originally framed, generally prohibited active-duty military officers from holding a second non-military position within the Executive Branch. As the Ninth Circuit has explained, far more than an antiquated technical provision, this dual-officeholding ban is designed “to assure civilian preeminence in government, i.e., to prevent the military establishment from insinuating itself into the civil branch of government and thereby growing ‘paramount’ to it.” Indeed, § 973(b)(2) may well be one of, if not the, most significant codifications of civilian control of the military—by preventing military officers from gradually assuming the key civil offices within the government.

To be sure, Congress has over time made a handful of express exceptions to the dual-officeholding ban. Thus, today, the Directors of the NSA, CIA, and a handful of other senior intelligence community officers may, by statute, be active-duty servicemembers. But these specific exceptions reinforce the rule. As § 973(b)(2) provides today,

Except as otherwise authorized by law, an [active-duty military officer] may not hold, or exercise the functions of, a civil office in the Government of the United States—(i) that is an elective office; (ii) that requires an appointment by the President by and with the advice and consent of the Senate; or (iii) that is a position in the Executive Schedule under sections 5312 through 5317 of title 5.

Whether or not CMCR judges are principal officers, there is no question that the position of “additional judge” on the CMCR is one “that requires an appointment by the President by and with the advice and consent of the Senate.” After all, even if Article II does not require such an appointment, the MCA itself does. And although Congress can override § 973(b)(2), there is no indication that it meant to do so, here, since the position of “additional” judge makes no reference to military officers—and, if anything, was initially intended to allow for the appointment of civilian judges to the CMCR. Thus, when President Obama appointed, and the Senate confirmed, these four active-duty military officers to the CMCR, it violated 10 U.S.C. § 973(b)(2)(A)(ii). And historically, the remedy for a violation of that statute has been the nunc pro tunc termination of those officers’ military service as of the date of their new appointment, presumably on the theory that the later act should control the earlier one.

The first litigant to raise this argument was Al-Nashiri himself, back in front of the CMCR after the D.C. Circuit’s decision in his case. On May 18, 2016, a CMCR panel that included Judge Mitchell rejected this argument, asserting, without any real analysis, that CMCR judges exercise a “classic military function,” and thus do not hold a “civil office” the appointment to which triggers § 973(b)(2)(A). This conclusion is rather vulnerable, since (1) the term “civil office” has historically been interpreted quite expansively by courts and the Executive Branch to mean just about any non-military position; (2) civilians (like one of the judges on the Al-Nashiri panel) can serve on the CMCR; and (3) appellate judges do not, in fact, exercise a “classic military function.” But because of how difficult it is to obtain mandamus relief from the D.C. Circuit, the CMCR’s ruling appeared to settle that issue, at least in the context of the military commissions.

4. CAAF and Dalmazzi

Not long thereafter, the issue was raised in the court-martial system. Air Force Second Lieutenant Nicole Dalmazzi had her conviction and sentence for a minor drug offense affirmed by an Air Force CCA panel that included Judge Mitchell. In a motion for reconsideration, Dalmazzi argued that Mitchell’s appointment to the CMCR disqualified him from sitting on the Air Force CCA—and so she was entitled to have her appeal reheard by a properly constituted panel. Although CAAF granted Dalmazzi’s petition for review on this question, it ruled in December 2016 that her claim was “moot,” because President Obama had not signed Judge Mitchell’s CMCR commission until after the Air Force CCA ruled in her case.

As explained in Dalmazzi’s petition for a writ of certiorari (on which, again, I’m counsel of record), this analysis makes no sense. For starters, Judge Mitchell was already participating in CMCR decisions (like the above-referenced May 18 ruling in Al-Nashiri) before President Obama signed his commission, and so he was “exercis[ing] the functions” of a civil office under § 973(b)(2)(A), whether or not he “held” the office on the day of his participation in Dalmazzi’s Air Force CCA decision. And in any event, Dalmazzi’s motion for reconsideration was not filed until after Mitchell’s commission had been signed, by which point all agree that he was serving on the CMCR, as well. Thus, CAAF should not have been able to duck the merits of the dual-officeholding claim quite so easily…

As for those merits, they apparently have now been decided by CAAF, as cryptically suggested in a pair of terse orders issued earlier this month—which, as we explained in a Supplemental Brief filed in the Supreme Court on Friday, offer no analysis, but do at least suggest that CAAF has rejected the claim that such dual-officeholding is unlawful. Although it’s hard to respond to a summary order, if nothing else, these decisions should tee the issue up for the Supreme Court. Indeed, although there are only two petitions pending at the moment (covering seven cases) that raise the dual-officeholding question, the fact that three CMCR judges are continuing to serve on the Army CCA has meant that there are now over 100 cases pending in the lower courts in which this question is presented—and more by the day. The Court has asked the Solicitor General to respond in Dalmazzi, so we should soon learn the Justice Department’s views on this issue.

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There’s no question that’s it’s a bit of a leap from McMaster, Mattis, and Kelly to service by active-duty military officers as CMCR judges. It’s also true that Congress could solve at least the statutory issue in Dalmazzi by expressly authorizing military officers to serve as additional CMCR judges (although such a statute might raise its own constitutional problems, as our cert. petition explains).

But writing for a majority of the Supreme Court in Stern v. Marshall, Chief Justice Roberts emphasized that “We cannot compromise the integrity of the system of separated powers and the role of the Judiciary in that system, even with respect to challenges that may seem innocuous at first blush.” While it may not appear to be a direct assault on the principle of civilian control of the military to have active-duty military officers serve as CMCR judges, it is an assault nevertheless, because it potentially opens the door to far more expansive service by active-duty military officers in positions (like Article I judgeships) historically reserved to civilians.

The Supreme Court has never had a case about the dual-officeholding statute in the 147 years it’s been on the books. But now may well be an especially propitious time for the Court to reaffirm the role that statutes like § 973(b)(2) play in our constitutional system—and to reassert the preference for civilian control of the government that such statutes enshrine.