Military Commissions and Unintended Constitutional Consequences

Over at Lawfare, I have a post up this morning providing a preview of next Tuesday’s oral argument in the D.C. Circuit in In re al-Nashiri–a mandamus action challenging the means by which judges were appointed to the Court of Military Commission Review (CMCR), the Article I court Congress created in the Military Commissions Act of 2006 to hear appeals from rulings by military commission trial judges. In a nutshell, Nashiri’s argument is that the CMCR’s judges are “principal” officers for purposes of the Appointments Clause of Article II, and so must be nominated by the President and confirmed by the Senate to those positions as such. Whereas the civilian CMCR judge hearing the government’s interlocutory appeal in Nashiri’s case was so appointed, the two military judges on the panel were not.

The Lawfare post sets out the argument in far more detail (and notes Marty’s earlier Just Security post that was more skeptical of its merits than I am). But for present purposes, it’s worth stressing a different point: This constitutional problem only arose because the Congress that enacted the Military Commissions Act of 2006 decided to put the military commissions under the control of the D.C. Circuit (which, at the time, was far more conservative–and, thus, far more likely to be sympathetic to the government), rather than the Court of Appeals for the Armed Forces–the civilian Article I court that sits atop the court-martial system.

Because CAAF–unlike the D.C. Circuit–is located “for administrative purposes” within the Executive Branch, the CMCR’s judges would have clearly been “inferior” officers had their decisions been subject to review by a higher body within the Executive Branch. Indeed, that’s almost the exact holding of Edmond v. United States. And the Supreme Court has been quite clear about the validity of reassigning inferior officers to other inferior officer positions so long as the duties of the new position are “germane” to the post to which the officer was initially appointed. (Although what does and doesn’t constitute “germaneness” is nowhere near as clear.) By putting the CMCR under the Article III D.C. Circuit, however, Congress almost certainly (if entirely accidentally) made the CMCR’s judges “principal” officers–for whom there is no similar precedent justifying reassignment without re-confirmation.

It remains to be seen whether the D.C. Circuit will agree, whether in the context of al-Nashiri’s petition for mandamus or some other appeal from the CMCR. For present purposes, the more important point is how Congress in its zeal to give the D.C. Circuit control over the military commissions raised a serious constitutional question that it could easily have avoided by placing the commissions within the court-martial system. Folks have argued for years that, as a matter of policy and best practices, we’d have been far better off if Congress had simply placed the commissions within the court-martial system. al-Nashiri adds a heretofore underappreciated constitutional dimension to those arguments. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).