As I noted in an earlier post, the U.S. Court of Appeals for the D.C. circuit (CTADC) has stayed the Court of Military Commission Review (CMCR) proceedings in the interlocutory appeal in al-Nashiri, in order to give the CTADC an opportunity to consider the merits of al-Nashiri’s mandamus petition, which seeks to disqualify two of the three judges on the CMCR panel.  Briefing on the petition begins tomorrow, when the government will file its answer to the mandamus petition.  Oral argument in the D.C. Circuit will take place sometime after December 15.  The CTADC must first determine whether it has jurisdiction to adjudicate al-Nashiri’s mandamus petition, and, if it answers that question “yes,” it would then proceed to the merits of the petition.

Steve has already posted on the jurisdictional question.  I have not studied that question enough to have a view on whether the CTADC has jurisdiction in this context.  Let’s assume for the sake of argument, however, that the CTADC panel agrees with Steve that it has jurisdiction, and thus reaches the merits of the petition.  What then?  This post is about the substance of al-Nashiri’s constitutional challenges to the composition of the CMCR.

The MCA authorizes the participation of both civilian and military judges on the CMCR.  al-Nashiri does not object to the presence of the one civilian judge on his panel, Scott Silliman.  Silliman was appointed to the CMCR by the President, by and with the advice and consent of the Senate.  See 10 U.S.C. § 950f(b)(3).  The other two members of his panel, however–Eric Krauss, an Army Colonel, and Jeremy Weber, an Air Force Lieutenant Colonel–are military officers.  The MCA specifically authorizes the Secretary of Defense to assign such military officers to the CMCR.  10 U.S.C. § 950f(b)(2).  al-Nashiri argues that such an assignment violates two distinct provisions of Article II of the Constitution.

As I have explained in several posts over the past few months, al-Nashiri’s challenges to the legal adequacy of the charges against him raise serious and difficult questions.  (See, e.g., this post on the charges related to the COLE bombing; and these two posts on the Limburg-related charges.)  By contrast, al-Nashiri’s principal challenge to the composition of the CMCR, based upon the Commander-in-Chief Clause, is very weak; I think that if the court of appeals reaches the merits, it will almost certainly reject that argument.  al-Nashiri also raises a second constitutional challenge, based upon the Appointments Clause.  That argument, too, is unlikely to prevail; however, as  I explain below, it does raise an unresolved question that I did not address in my previous post about this issue.*

Commander-in-Chief Clause.  al-Nashiri devotes the bulk of his petition to an argument based upon the Commander-in-Chief Clause of Article II, which designates the President as the Commander in Chief of the Army and Navy.  al-Nashiri’s argument is difficult to parse, but I think this is the gist of it:

(i) Subsection 949b(b) of the 2009 MCA, argues al-Nashiri, only allows the Secretary of Defense to reassign military officers from the CMCR–to remove them, in other words–for “good cause.”  (p.9 of the petition)  Those officers are thus afforded “tenure in a particular assignment,” and subsection 949b(b) would entitle them to “refuse to obey” any order to be reassigned if they believe it would interfere with their judicial duties.  (pp. 19-20)

(ii) This restriction on the Secretary’s authority to “remove” those military officers from their CMCR duties, argues al-Nashiri, impermissibly impinges upon the President’s constitutional authority to reassign troops as needed for military purposes, and thereby violates the Commander-in-Chief Clause.  (pp. 18-20)

(iii) Because of this alleged constitutional infirmity, al-Nashiri argues, the President might decide to ignore the statutory removal restrictions, and order the Secretary to reassign the CMCR judges “at will,” including, possibly, in response to their rulings as judges.  (pp. 21-22)

(iv) The prospect of such reassignment will naturally cause those judges to think that their “judicial independence is an illusion,” which will in turn have some impact on how they decide cases.  (p. 22)

(v) And such a lack of impartiality on the part of the CMCR judges would itself be unconstitutional, presumably on due process grounds.  (The petition never quite makes this point expressly; but it is implied at p.22, and it must be the final piece of the argument–otherwise, al-Nashiri would not have standing to sue for the alleged violation of the Commander-in-Chief Clause.)

There are serious flaws in each of these steps in al-Nashiri’s CINC argument.  The problems include the following, roughly corresponding to the several steps in al-Nashiri’s argument described above:

i.   Contrary to al-Nashiri’s suggestion, subsection 949b(b) does not limit the Secretary to removing military judges on the CMCR “for good cause.”  10 U.S.C. 949b(b)(4)(D).  The Secretary may also reassign them to “other duties” “based on military necessity,” consistent with “service rotation regulations.” 10 U.S.C. 949b(b)(4)(C).  Therefore, if, for example, the exigencies of war required it, the Secretary could reassign a CMCR judge to a battle-related assignment.  Therefore the President’s authority to assign troops as needed is unaffected by the Act.

ii.  In any event, even if there were no such authority for reassignment based upon “military necessity”–for example, if the statute guaranteed military CMCR judgments a three-year term of office–the removal restriction of subsection 949b(b)(4) would not violate the President’s authority as Commander-in-Chief.  The President does not have an absolute, indefeasible constitutional authority to reassign every single member of the armed forces at will.  Moreover, the MCA itself doesn’t materially affect the President’s ability to have officers reassigned:  It gives him the option of appointing all civilian judges to the CMCR in the first instance, so that no military officers would be assigned to the court.  And, as noted above, even if he instead allows the Secretary to assign some military officers to the court (as President Obama has chosen to do), the statute does permit the Secretary to reassign those officers for military necessity, which obviates any conceivable constitutional concern.

iii.  There is no prospect at all that the President would conclude that the “for good cause or military necessity” removal restrictions in section 949b(b) are unconstitutional . . . and therefore there is no reasonable basis for a CMCR judge to worry about what the President might do in such a situation.

iv.  More to the point, even though the Secretary does have statutory authority to reassign officers from their CMCR positions for purposes of military necessity, the MCA prohibits the SecDef and the President (and other officials) from reassigning such officers in reaction to, or in order to influence, the judges’ decisions on the court, see 10 U.S.C. 949b(a)(2)–a restriction that is plainly constitutional.  Therefore there is no reason at all for Judges Krauss and Weber to fear that the President or Secretary will in effect punish them for their decisions on the CMCR (or, in any event, any hypothetical prospect of such unlawful command influence does not distinguish CMCR judges from all other military judges).

v.  The Supreme Court has already held, in Weiss v. United States (1994), that where, as here, the statute in question insulates military judges from the effects of command influence over their decision-making, the Due Process Clause does not require a fixed term of office, let alone lifetime tenure, in order to guarantee sufficient protection of judicial impartiality.  Therefore, the fact that the military judges on the CMCR can be reassigned for “military necessity”–something that presumably was true with respect to the military judges in the Weiss case, too–raises no serious constitutional problem.

For all of these reasons, I think the prospects of al-Nashiri prevailing on his Commander in Chief Clause argument are negligible.

Appointments Clause.  al-Nashiri’s second Article II argument is that because individuals serving as judges on the CMCR are “principal” (or “non-inferior”) officers for purposes of the Appointments Clause (Art. II, sec. 2, cl. 2), they each must be appointed in conformity with that clause–namely, by the President, by and with the advice and consent of the Senate.  As I explained in an earlier post, al-Nashiri is probably correct that CMCR judges are principal officers, because CMCR judgments–unlike the judgments of the intermediate executive branch judges at issue in Edmond v. United States–are not reviewable by any other executive branch officers, and CMCR judges would not appear to satisfy the standards for “inferior” officer status articulated in either Edmond or Morrison v. Olsen.  Accordingly, it is fair to assume, as al-Nashiri argues, that the Appointments Clause requires such judges to be appointed by the President, by and with the advice and consent of the Senate.

The problem with al-Nashiri’s Appointments Clause argument, however, is that this requirement of the Appointments Clause has been satisfied:  Colonel Krauss and Lieutenant Colonel Weber have been appointed by the President, by and with the advice and consent of the Senate.

To be sure, the President did not appoint Krauss and Weber to the CMCR, in particular.  Instead, the President appointed them (with Senate approval) to commissioned offices in the armed forces, and they only became CMCR judges by virtue of the Secretary’s additional assignment, rather than directly by the President and the Senate.  This two-step process, however, should not matter for Appointments Clause purposes if the new assignment (here, to the CMCR) is “germane” to the duties of the offices to which the President and Senate have appointed them.  See Weiss v. United States (1994), and pages 547-550 of this 1994 OLC Memorandum.  And the Supreme Court has already held, in Weiss, that “the role of military judge is ‘germane’ to that of military officer” (in large measure because, even if they are not assigned to such judge positions, “all military officers, consistent with a long tradition, play a role in the operation of the military justice system”); and therefore it is “clear that the Appointments Clause by its own force does not require a second appointment before military officers may discharge the duties of such a judge.”

Because service on such a military court is “germane” to the military offices to which Krauss and Weber were appointed–by the President and the Senate–I wrote earlier that there was no merit to al-Nashiri’s Appointments Clause challenge.  Indeed, the constitutional challenge is all the more implausible with respect to these two particular judges, because when the President nominated, and the Senate confirmed, Krauss and Weber to their most recent commissioned offices, as Colonels, those appointing parties knew that service of Krauss and Weber on the CMCR was a possible incident of the office to which they were being appointed.  The Senate confirmed Krauss as a Colonel on November 10, 2011, after enactment of the 2009 MCA and after Krauss had already been serving in another judicial capacity, on the Army Court of Criminal Appeals.  And on July 31, 2014, the Senate confirmed Weber, who has been an active duty judge advocate since 1996, as a Colonel, after he had already been assigned to serve on the CMCR itself.  (UPDATE:  Apparently Weber has not yet been promoted to Colonel, notwithstanding his recent appointment.)  Therefore, even assuming that service on the CMCR makes Krauss and Weber principal officers, it is hard to see why their most recent appointments by the President and the Senate — made in full awareness of the possibility of such judicial service — does not satisfy the requirements of the Appointments Clause.

What I failed to mention in my earlier post, however, was that in Weiss itself, Justice Souter wrote a separate concurring opinion in which he argued that a scheme such as this one would raise a “serious constitutional question.”  Justice Souter conceded that “the President and Senate are theoretically aware that each officer nominated and confirmed [for commissioned offices] may serve as a military judge.”  Even so, he concluded that “[j]udging by the purposes of the Appointments Clause, . . . this difference is immaterial,” because “[i]t cannot seriously be contended that in confirming the literally tens of thousands of military officers each year the Senate would, or even could, adequately focus on the remote possibility that a small number of them would eventually serve as military judges.  And the method for appointing military judges allows the President no formal role at all in the selection of the particular individuals who will actually serve in those positions.  This process likewise deprives the public of any realistic ability to hold easily identifiable elected officials to account for bad appointments.”

Justice Souter wrote only for himself in Weiss, and the “germaneness” rationale of the majority opinion in Weiss was fairly categorical, without suggesting any reservations as applied to the hypothetical cases that troubled Justice Souter.  Moreover, for various reasons that are not worth setting out in detail here, I don’t find Justice Souter’s reasoning to be especially persuasive.  If the President nominates, and the Senate confirms, an individual for an office, the duties of which might foreseeably involve service on the CMCR, the Appointments Clause does not further require the Senate to “adequately focus” on whether it would be appropriate to assign the individual to the military court; nor does it require the President to have a “formal” role in such an assignment.  (The President does, of course, have the de facto authority to determine which officers the Secretary of Defense assigns to the CMCR, for whatever that’s worth.)

Be that as it may, the Souter concurrence does at least tee up an Appointments Clause question that the courts have not specifically resolved in the past.  Therefore, if the Court of Appeals reaches the merits of al-Nashiri’s petition, the rationale of the Souter concurrence in Weiss will likely be the most substantial and unresolved matter for the court to examine.


* Disclosure:  I advised on the legislation that became the Military Commissions Act of 2009 while I was at DOJ, but this post reflects only my own views, which are not necessarily those of DOJ or the United States.