[00:00:04] Speaker 00: Case number 14-1203, Henry Ab Al Rahim Hussain Mohammed Al Nasheri, a petitioner. [00:00:12] Speaker 00: Mr. Paradise for the petitioner, Mr. Dupriu for the respondent. [00:01:18] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:01:21] Speaker 01: When Congress created the United States Court of Military Commission review as an independent court of record, it did so because it recognized that robust and independent appellate review would be essential if the military commission system was ever to have any legitimacy. [00:01:41] Speaker 01: We therefore ask this Court to salvage Congress's reforms by disqualifying Lt. [00:01:48] Speaker 01: Col. [00:01:48] Speaker 01: Weber and Ward because they are constitutionally ineligible to serve as the independent federal appellate judges [00:01:57] Speaker 01: that they are for two specific reasons. [00:02:02] Speaker 01: First, when Lieutenant Colonel's Webber and Ward went before the Senate as non-civilian nominees, they were part of pools of 2,000 and 1,000 other inferior officers, respectively. [00:02:16] Speaker 01: And Congress cannot, consistent with the Appointments Clause, [00:02:21] Speaker 01: delegate to the Secretary of Defense the authority to unilaterally reach down into those pools and elevate an inferior officer into a distinct, judicially independent, principal office that Congress has created by law. [00:02:37] Speaker 01: And second, as military officers, Lieutenant Colonel Weber and Ward are subject to a civilian chain of command that extends from the commander in chief. [00:02:49] Speaker 01: And Congress cannot, pursuant to judicial independence or otherwise, immunize them from supervision and control by their military superiors with respect to their military activities. [00:03:02] Speaker 01: And because that is what the judicial independence provisions of the 2009 Act do, they are unconstitutional and must be struck. [00:03:11] Speaker 03: No, the statute says that for military necessity, they can be reassigned or used in any way that the Commander-in-Chief or his subordinates within the military would see fit. [00:03:21] Speaker 01: It's military necessity plus compliance with the services rotation, professional rotation. [00:03:27] Speaker 03: Which they comply with anyway. [00:03:28] Speaker 03: Does the compliance with the services rotation violate the Commander-in-Chief clause? [00:03:32] Speaker 01: Well, no, because those regulations are always waivable. [00:03:36] Speaker 01: And in any other, certainly statutory, regulation of the duration of a particular assignment for a military officer, the President is given near unilateral authority to waive them at will. [00:03:47] Speaker 03: So you're saying codifying them in the statute renders them non-waivable here and therefore more rigid than would be consistent with the Commander-in-Chief? [00:03:53] Speaker 01: That's correct. [00:03:54] Speaker 01: And they're not waivable here. [00:03:57] Speaker 01: And so because of that, because they have essentially been immunized from their civilian chain of command, they cannot be the independent federal appellate judges that Congress wanted them to be, that Congress intended them to be, and that Congress created the U.S. [00:04:14] Speaker 01: Court of Military Commission review in 2009 to ensure that they would be. [00:04:20] Speaker 01: And so for that reason we ask that they be disqualified, and if there are [00:04:25] Speaker 01: No further questions. [00:04:26] Speaker 01: I would just reserve the remainder of my time. [00:04:30] Speaker 03: I think we may have questions. [00:04:31] Speaker 01: Oh, yes, please. [00:04:31] Speaker 03: Please, Your Honor. [00:04:33] Speaker 03: Why now? [00:04:35] Speaker 03: You know, we don't ordinarily exercise jurisdiction prior to final judgment, and there's statutory authority directing us to exercise our appellate jurisdiction after final judgment. [00:04:47] Speaker 03: This seems like it's something that will be presented to us in due course. [00:04:51] Speaker 01: Well, this is the due course, primarily because writs of mandamus for the purpose of disqualification, indeed even other legal actions dealing with disqualification, are ordinarily and best heard before the systemic damage has been done. [00:05:07] Speaker 01: This court certainly recognized that in Cobell v. Norton. [00:05:12] Speaker 01: But I think the Supreme Court's analysis of that very point you're making, Your Honor, [00:05:16] Speaker 01: in a free enterprise fund, which was an appointments clause case, the need to have clarity about the eligibility and the constitutionality of the officers serving and what their role, responsibility, and independence actually is, is important to resolve at the earliest possible opportunity. [00:05:35] Speaker 03: Isn't it really a call for the government to make if the government is willing to take its chances that at the end of the day, this appellate body is going to be determined to be [00:05:46] Speaker 03: invalid under the Appointments Clause. [00:05:50] Speaker 03: Why can't they make that decision? [00:05:52] Speaker 01: Well, because the Congress has determined that Mr. Alashiri, my client, has the right to go before an independent appellate court. [00:05:59] Speaker 01: And so he is deprived of that right so long as the structural problems. [00:06:03] Speaker 03: Yeah, at the end of the day, he may win that argument. [00:06:06] Speaker 03: And isn't that what the statute gives him, is a right at the end of the day not to have a conviction upheld if the appellate body that would sustain it is not validly composed under the Appellate's Clause. [00:06:20] Speaker 03: Why the timing? [00:06:21] Speaker 03: Why now? [00:06:23] Speaker 01: Well, again, the timing, I would say, looking to every precedent dealing with judicial disqualification, it's something we want to get resolved as early as possible. [00:06:31] Speaker 03: But aren't those cases mostly dealing with bias? [00:06:34] Speaker 03: And so the notion that all the [00:06:37] Speaker 03: discrete judgments going along might be affected by a judge who's biased. [00:06:42] Speaker 03: And here there's no such claim. [00:06:43] Speaker 03: Here it's a structural question. [00:06:45] Speaker 03: Because judges are doing their level best, but maybe they're not appointed validly. [00:06:50] Speaker 03: So why isn't that something that could be just as well [00:06:53] Speaker 03: fixed, if it needs to be fixed, at the end of the day. [00:06:57] Speaker 01: Sure, absolutely. [00:06:57] Speaker 01: And I would give you two reasons for that. [00:06:59] Speaker 01: One is your premise is somewhat incorrect. [00:07:02] Speaker 01: Some of the most important cases, including Cobell v. Norton and Free Enterprise Fund, did not deal with judicial claims of bias. [00:07:09] Speaker 01: They dealt with separation of powers issues, which is exactly what we have here. [00:07:12] Speaker 01: And second, the risk of bias infecting the process is essentially at its maximum here, because if these individuals who are going to be deciding this appeal and potentially remanding charges back down to a capital trial, capital charges, incidentally, to a capital trial, it will be structural error that will [00:07:33] Speaker 01: and necessarily vacate the entire sentence he is given, and could potentially vacate the conviction as well. [00:07:40] Speaker 01: And so in terms of all of the little incidental problems. [00:07:44] Speaker 03: At this point, though, it's not the entire. [00:07:46] Speaker 03: It's just one of the three charges that's before. [00:07:50] Speaker 01: It's a five. [00:07:53] Speaker 01: Five of the charges are impacted by that. [00:07:56] Speaker 03: But dealing with one subset of the alleged conduct. [00:07:59] Speaker 03: And so your client is facing [00:08:03] Speaker 03: death penalty charges in any event without regard to what happens in this appeal. [00:08:09] Speaker 03: Is that not correct? [00:08:10] Speaker 01: That is correct. [00:08:10] Speaker 01: But the two points that I would focus on is, one, is it substantially broadens the scope of his capital exposure in this case. [00:08:17] Speaker 01: And that does, this court, I don't know that there are any cases from this court, but certainly the Second Circuit and the Ninth Circuit have recognized that capital cases present unusual pressures on the defendant [00:08:28] Speaker 03: But those cases are not in the context of military trials. [00:08:32] Speaker 03: They're in the context of civilian trials. [00:08:34] Speaker 01: That's correct. [00:08:34] Speaker 01: Well, Toth versus Quarles and Reed versus Covert from the Supreme Court, both were pretrial challenges to the legality of the court's marshals in those cases. [00:08:45] Speaker 01: And Judge Harlan in his concurrence, I believe in Reed, [00:08:48] Speaker 01: I made a special point of emphasizing the particular nature of a capital case, which does raise issues that are unique in kind to an ordinary case and the need for early prompt and getting it right the first time. [00:09:01] Speaker 03: Can you tell us a little bit more about that? [00:09:03] Speaker 01: Sure, in Rovita versus Covert involved a wife of a service member who was charged, I believe, for murdering the service member, and she was charged before a court-martial under the Uniform Code of Military Justice, which authorized dependents to be prosecuted by court-martial. [00:09:23] Speaker 01: including for capital offenses. [00:09:25] Speaker 01: She was tried, she sought rid of habeas corpus, and was ultimately granted that rid of habeas corpus, I believe, from this court, but certainly from the Supreme Court. [00:09:35] Speaker 01: And again, on an interlocutory basis. [00:09:38] Speaker 03: Indeed, the vast majority... What I'm asking is, can you help us to understand the argument that you're making, that somehow the fact that your client is death eligible in... [00:09:49] Speaker 03: in these counts affects the analysis at all. [00:09:54] Speaker 01: Sure, and I'll give you one very particular example which is unique to the military context is because in the military context, sentencing is all-inclusive. [00:10:04] Speaker 01: There is no individual sentencing. [00:10:05] Speaker 01: You don't get a sentence for each charge. [00:10:07] Speaker 01: You get convicted on whatever charges you get convicted of and then you get an omnibus sentence that attaches to the entire judgment. [00:10:14] Speaker 01: So Mr. Al-Nashiri, if he's essentially charged with five extra capital crimes, he stands a far more likely chance of getting the death penalty on all of his crimes. [00:10:23] Speaker 03: Again, my point would be that's a risk that the government is facing. [00:10:27] Speaker 03: And your client might, in fact, benefit from this being decided at the end of the day rather than now. [00:10:35] Speaker 03: I mean, it seems like if you're right that one of the beams in this edifice that [00:10:41] Speaker 03: of trial that's being contemplated is already chewed on by termites, and at the end of the day, it's going to come crashing down. [00:10:50] Speaker 03: It's the government that should be concerned about that. [00:10:52] Speaker 01: Well, I certainly agree the government should be concerned about that. [00:10:55] Speaker 01: But when I have a client who is going to be potentially told by 12 members of the armed forces that he will be killed imminently, I think that is a unique and a special harm to him that... But there are charges that are [00:11:07] Speaker 03: not implicated here that are charges carrying a potential penalty of death. [00:11:13] Speaker 03: So even if you were to win everything you're seeking today, that risk remains. [00:11:18] Speaker 03: And I understand you're saying, well, part of the support for the omnibus potential death penalty would be taken away. [00:11:24] Speaker 03: there's still a lot of charges there. [00:11:28] Speaker 03: So it's not going to change this from a death to a non-death case. [00:11:31] Speaker 01: It doesn't change it from a death to a non-death case, but it does change the scope of the case in very substantial ways. [00:11:36] Speaker 01: One is the sentencing issue I mentioned before. [00:11:38] Speaker 01: But in addition, the aggravating factors. [00:11:40] Speaker 01: There are five aggravating, statutory aggravating factors. [00:11:44] Speaker 01: They're passed by regulation, but they are sort of the equivalent of statutory aggravating factors in a death case. [00:11:50] Speaker 01: At least one of them is being convicted of multiple capital crimes. [00:11:54] Speaker 01: And so that, in a very specific and particular way, does directly expand his eligibility for the death penalty. [00:12:02] Speaker 01: And again, Your Honor, I understand your point that maybe this is just the termite eaten, written beam that five to 10 years from now in this case ultimately gets to this court on post-trial review that will bring everything crashing down. [00:12:19] Speaker 01: I have trouble seeing exactly how that benefits my client, who has already been in custody 14 years, if he has to be retried again 10 years from now on charges that he claims his innocence for. [00:12:30] Speaker 01: And also I think it's a grotesque waste of judicial resources. [00:12:33] Speaker 01: And if the government is willing to waste those resources, [00:12:37] Speaker 01: Certainly, Guantanamo has not been the most cost-effective means of prosecution, but I think this court can certainly look past those representations of what the government believes to be in its narrow, short-term interest, and to look at the public's interest in not only ensuring that justice is swift or swifter, and not only that it's more cost-effective, but that the government at least tries to get it right the first time. [00:13:00] Speaker 01: and doesn't just bury as much error as it can into the record so that when these cases crash into this court and get meaningful judicial review at the end of the day, that all of the convictions get vacated. [00:13:13] Speaker 01: And I think certainly in the Al-Balul and the Hamdan cases, there are substantial poor, one was vacated outright and the other was substantially vacated unanimously by this court on issues that had meandered through the military commission system for the better part of a decade. [00:13:28] Speaker 01: And so certainly at the end of the day, this court has the discretion to issue a writ or not. [00:13:33] Speaker 01: But I think in terms of both the public interest as well as my client's interest, I think strongly auger in favor of resolving this at the earliest opportunity. [00:13:42] Speaker 03: And do we have the power to do it? [00:13:44] Speaker 03: We don't have any power to consider any action. [00:13:48] Speaker 03: At this stage? [00:13:50] Speaker 01: You do, actually, because under Section 950G, this Court is given jurisdiction as the Appellate Court of Right over final judgments from the Military Commission. [00:14:00] Speaker 01: That language is in hoc verba from the parallel provision, Article 66 of the UCMJ, which governs the role of the Court of Appeals for the Armed Forces and the interstitial criminal courts of appeal that sit on top of courts martial. [00:14:15] Speaker 01: And so certainly this court has the same jurisdiction. [00:14:19] Speaker 03: Well, what about the jurisdiction stripping? [00:14:21] Speaker 03: We don't have any jurisdiction until there's a final judgment. [00:14:24] Speaker 01: Well, this court has prospective jurisdiction. [00:14:28] Speaker 01: I would just point to in-ray tenant as this court's sort of deepest analysis of that, as well as Morrow versus District of Columbia. [00:14:35] Speaker 01: I think both are cited in our reply brief. [00:14:38] Speaker 01: But with respect to Section 72 or 2241-82, this court held in Belbacha, this court has already held that the jurisdiction stripping language of Section 7 has no effect whatsoever on this court's remedial authority. [00:14:53] Speaker 01: under the All Writs Act. [00:14:54] Speaker 01: Because remember, the All Writs Act is not a jurisdictional statute. [00:14:58] Speaker 01: It's simply codifying the court's inherent remedial powers in any case that is under its present or prospective, or even former jurisdiction. [00:15:06] Speaker 01: Writs of quorum know this happened after jurisdiction ordinarily would seem to expire, and those exist in the military. [00:15:14] Speaker 01: in the ordinary military system as well. [00:15:17] Speaker 01: So I think to the extent that Belbacha remains good law in this circuit, and indeed was decided at a time before the Supreme Court decided to mediate, and so that under the standing law of this circuit, the courts had no jurisdiction over detainees. [00:15:36] Speaker 01: I certainly think the same analysis of the same statutory provision applies here. [00:15:41] Speaker 01: And I didn't see anything in the government's brief to distinguish that. [00:15:44] Speaker 01: The only other point I would make, particularly on the Section 7 point, is that Congress did codify precisely the provision you're talking about in the 2006 act. [00:15:55] Speaker 01: Section 950 J. Bravo was a provision that said final judgments only. [00:16:03] Speaker 01: And it said the procedures, any challenge to the military commission's procedures, jurisdiction, what have you, may only be done pursuant to essentially the express terms [00:16:12] Speaker 01: of this statute. [00:16:14] Speaker 01: And this court, in fact, did rely on that in a case called Cotter, not the reported decision, but an unreported order in the Cotter case. [00:16:26] Speaker 01: This court summarily relied on that to dismiss any challenge to the military commissions. [00:16:31] Speaker 01: Congress, in the same law that created the Court of Military Commission review as a court of record, [00:16:36] Speaker 01: repealed section 950 JB. [00:16:40] Speaker 01: And so I think to the extent the government is asking this court to revive section 950 JB, they are asking this court to ignore multiple of the reforms Congress made in 2009 in order to ensure that the military commissions had adequate appellate review and were ultimately perceived by the public to be legitimate. [00:16:58] Speaker 03: Well, we'll hear from them, but I think they're hanging their hat on the Any Action language in the 2009 Act, which I think is broad enough to shear away our jurisdiction now that you're seeking under the All Ribs Act. [00:17:15] Speaker 01: I know they're hanging their hat on that. [00:17:17] Speaker 01: This court rejected that in Belbacha. [00:17:19] Speaker 01: In terms of pleading to authority, I would rest on Belbacha for that proposition. [00:17:25] Speaker 01: But also, again, the Supreme Court's decision and the general decision in Dean Foods, but also the general notion that when statutes are either jurisdiction stripping or jurisdiction limiting, or particularly where they go at the court's inherent remedial authority. [00:17:39] Speaker 01: Because remember, that's all a writ is. [00:17:41] Speaker 01: There's no independent [00:17:43] Speaker 01: jurisdictional basis for a writ. [00:17:45] Speaker 01: A writ is an exercise of this court's potential jurisdiction. [00:17:49] Speaker 01: And so that when Congress passes statutes that impinge on those, the courts do everything they can to require specificity and clarity. [00:17:57] Speaker 01: And as this court, again, held in Bellavacha, nothing in section 72 mentions the All Writs Act, touches extraordinary writs, or remedial, this court's remedial authority. [00:18:11] Speaker 03: And so, I take your point of Belbacha being before the 2009 act, you're just making a broader point about the separate understanding of the Alrith power. [00:18:24] Speaker 01: Am I making a broader understanding? [00:18:26] Speaker 03: I mean, the language that the government is relying on is language in the 2009 act that didn't exist at the time that this court decided to bail Bach out. [00:18:32] Speaker 01: No, that's not correct. [00:18:32] Speaker 01: The language the court is relying on was enacted in 2006. [00:18:36] Speaker 01: This is section 7E2 of the 2006 act. [00:18:41] Speaker 01: It's the habeas stripping provision that was up before the Supreme Court in the immediate. [00:18:46] Speaker 01: This is just essentially a residual clause to that they've relied on. [00:18:51] Speaker 01: So if there are no further questions, I would simply just reiterate that these are systemically important questions that should be resolved now. [00:18:58] Speaker 01: They will poison and taint every case to come before this Court over the next ten years and these cases have been delayed long enough. [00:19:10] Speaker 01: Thank you. [00:19:15] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:19:17] Speaker 02: My name is John Depew, and I'm an attorney with the [00:19:21] Speaker 02: with the National Security Division of the Department of Justice. [00:19:34] Speaker 02: At the outset, as Judge Pollard has noted, let's not lose sight of the fact that we are here on mandamus. [00:19:42] Speaker 02: And in order to issue the writ, the court needs to determine that doing so is necessary and appropriate in aid of its ultimate jurisdiction. [00:19:54] Speaker 02: Neither of those criteria apply here. [00:19:58] Speaker 02: Nothing about the decision of the Court of Military Commission review rejecting Petitioner's Appointments Clause claim will in any way shape or form affect this court's ultimate ability to reach that issue if and when it reaches this court. [00:20:18] Speaker 02: Let's suppose that this court vacates the state, the case is remanded [00:20:25] Speaker 02: by the CMCR to a military commission, and the military commission convicts the petitioner of any offense. [00:20:34] Speaker 02: If that conviction is affirmed by the CMCR and approved by the convening authority, petitioner's appointments clause and separation of powers clause will be squarely before this court [00:20:48] Speaker 02: on plenary review. [00:20:51] Speaker 04: And this court will have jurisdiction to address those issues? [00:20:54] Speaker 02: At that point, absolutely, Your Honor, because that will be a final judgment as approved by the convening authority and passed on by the CMCR as required under Section 950-G of the Military Commissions Act. [00:21:12] Speaker 02: If, on the other hand, there is a prospect that the case will become moot as a result of the petitioner's acquittal, both of these claims will become moot, invoking the principle that this court has followed in the Cisneros case, that you don't reach constitutional claims unless it's necessary to do so. [00:21:37] Speaker 02: Assertion of the mandamus jurisdiction is not appropriate because it is plain. [00:21:43] Speaker 02: From the plain language of the Military Commissions Act, from the plain language of Section 7E2, [00:21:51] Speaker 02: of the 2006 Act, and from the legislative history of that statute, that what Congress was trying to accomplish here was to let the military commission system function from the pre-trial stage through appellate review by the CMCR, frankly, without piecemeal litigation and without intervention by the Article III courts. [00:22:18] Speaker 02: It reserved that intervention for cases [00:22:21] Speaker 02: where there was a conviction and where the conviction was affirmed by the CMCR. [00:22:27] Speaker 02: Now let me talk briefly about this jurisdiction stripping language that Judge Pillard had his colloquy with my friend about. [00:22:37] Speaker 02: Yes, it does indeed reach any action against the government or its agents [00:22:48] Speaker 02: relating to the trial or any aspect of the trial against an enemy detainee. [00:22:56] Speaker 02: As your colleagues Judge Kavanaugh observed in the dissenting from your order issuing this day, the language of that provision falls squarely [00:23:10] Speaker 02: within the plain terms of the act. [00:23:12] Speaker 02: This is indeed an action. [00:23:14] Speaker 02: It's a separate action from final review. [00:23:16] Speaker 02: In explaining what it intended in enacting that legislation, the legislative history of the 2006 act, both the reports of the House Judiciary Committee and the House Armed Services Committee say that what we mean to do is to preclude the courts from addressing any legal claim [00:23:38] Speaker 02: relating to a military commission other than those relating to the final judgment. [00:23:45] Speaker 02: And this plainly falls within that language, as the Ninth Circuit recently recognized as its counterclaim. [00:23:51] Speaker 04: So, counsel's arguing that the anti-claim language was repealed. [00:23:58] Speaker 02: Oh, absolutely not, Your Honor. [00:24:01] Speaker 02: I would invite the Court's attention to the preparatory language of Section 22-41E2. [00:24:07] Speaker 02: It says, except as otherwise provided, citing the DTA, the Attention Act, except as otherwise provided, it can't relate to any. [00:24:22] Speaker 02: Well, the otherwise provided [00:24:24] Speaker 02: When you look at the Detention Act, it involves final judgments in the legislative history. [00:24:29] Speaker 02: The House report makes it absolutely clear that that is not intended to strip away this court's jurisdiction with respect to final judgment review. [00:24:40] Speaker 03: In the Ninth Circuit case, they were bringing a separate declaratory judgment action. [00:24:46] Speaker 02: That's correct, Your Honor. [00:24:46] Speaker 03: Whereas here, your opponent has argued that we don't have a separate action and that the language, of course, of 22-41-82 is any action. [00:24:57] Speaker 03: Rather, what we have here is an exercise of our remedial authority under the Alberts Act. [00:25:03] Speaker 02: That's correct, Your Honor. [00:25:04] Speaker 02: I understand that argument, and my response to that is, whatever the theoretical underpinnings of mandamus jurisdiction may be, whether it's a separate action or whether it's ancillary to your ultimate jurisdiction, [00:25:17] Speaker 02: This is, this particular claim, that there's a violation of the Appointments Clause and a violation of the Separation of Powers Clause, that is, under the plain language of that statute, a separate action. [00:25:29] Speaker 02: Or, to use the words of the legislative history of the House report, a separate claim. [00:25:34] Speaker 02: And that's what the Court, that's what the Congress sought to foreclose this Court from addressing. [00:25:41] Speaker 02: prior to the point at which a conviction, as affirmed, resulted in. [00:25:46] Speaker 03: How do you respond to Belmacha? [00:25:49] Speaker 02: Oh, that's quite simple. [00:25:53] Speaker 02: Belmacha involved the appointment by Judge Lamberth. [00:26:04] Speaker 02: Let's see. [00:26:04] Speaker 02: That's cool, though. [00:26:05] Speaker 02: Oh, let me talk about Bo Bacha a little bit in context. [00:26:10] Speaker 02: The court, since the Bo Bacha case, has repeatedly made it clear that Section 2241E2 does not reach claims sounding in habeas. [00:26:28] Speaker 02: So the first thing that this court has done in Amer, in Cotter, in Aljanco, Zerini, is to look to see whether the underlying claim sounds in habeas when the government asserts that section. [00:26:42] Speaker 02: Well, if it does sound in habeas, that's the end of the matter. [00:26:45] Speaker 02: We don't get the benefit of that section. [00:26:49] Speaker 02: Now, Belbacha preceded that analysis. [00:26:52] Speaker 02: But it was very similar. [00:26:54] Speaker 02: In Belbacha, what happened? [00:26:56] Speaker 02: is that during the pendency of the courts granting certiorari in the Supreme Court's case involving Boumediene and the decision in Boumediene, [00:27:12] Speaker 02: government was threatening to deport Mr. Belbacha back to Algeria. [00:27:18] Speaker 02: Of course, if it was to do that, the court would lose its jurisdiction. [00:27:23] Speaker 02: So what the Belbacha court said was, we're going to look to see if this underlying claim sounds in habeas. [00:27:31] Speaker 02: Because if it sounds in habeas, you don't get the benefit of 2241E2. [00:27:34] Speaker 02: That's our preliminary step. [00:27:39] Speaker 02: The court then went on to decide that the petitioner did indeed have a claim that sounded in habeas because he was challenging the legality of his detention. [00:27:51] Speaker 02: And the court said, because it sounds in habeas, 2241E2 doesn't apply. [00:27:57] Speaker 02: We have the benefit of the Aldridge Act. [00:28:00] Speaker 02: We can issue a writ here enjoining the detention, enjoining the removal of Belbacha. [00:28:06] Speaker 02: Well, this case, Your Honors, is not Belbacha. [00:28:10] Speaker 02: This case does not involve habeas. [00:28:12] Speaker 02: It involves a separate separation of powers, an Appointments Clause claim that had nothing whatsoever to do with Belbacha, which falls squarely within the terms of paragraph E2 and is not in any way, shape, or form necessary for the preservation of this Court's jurisdiction at that juncture. [00:28:33] Speaker 02: Now, having said that, I'd like to turn to the merits. [00:28:36] Speaker 02: Yes, Judge Pillar, did you have a question? [00:28:38] Speaker 03: I was just going to ask you to turn to the merits. [00:28:41] Speaker 02: OK, so much for jurisdiction. [00:28:43] Speaker 02: Now, I think the criteria for habeas are... I'm sorry. [00:28:46] Speaker 04: I want to just caution Mr. Dupree, because I've been on these cases long enough. [00:28:51] Speaker 02: Yeah, no, I had you once. [00:28:53] Speaker 04: Well, I can hear the government making an argument [00:28:59] Speaker 04: rejecting your concession before this court regarding the adequacy of the direct appeal. [00:29:07] Speaker 04: And I want to be very clear that the government's position is that under this court's final judgment jurisdiction, it can reach the Appointments Clause and the Commander in Chief Clause [00:29:29] Speaker 04: contentions that are presented today in support of mandamus. [00:29:37] Speaker 02: Oh, absolutely. [00:29:38] Speaker 02: And of course, the standard is different, too. [00:29:40] Speaker 02: You don't get to have to deal with the mandamus standard. [00:29:47] Speaker 02: You do that de novo. [00:29:50] Speaker 04: So if we write saying that the government has conceded this and that this is necessary to our decision, [00:29:59] Speaker 04: So it's not dictum. [00:30:02] Speaker 04: That is consistent with the government's position. [00:30:06] Speaker 02: Yes, I certainly wouldn't call it a concession. [00:30:07] Speaker 02: I would simply say it's an acknowledgment that your jurisdiction. [00:30:11] Speaker 04: Even better. [00:30:13] Speaker 02: That your jurisdiction under 950-G would permit you to reach that issue. [00:30:22] Speaker 02: And I don't know why it wouldn't. [00:30:24] Speaker 04: All right. [00:30:30] Speaker 02: The criteria for habeas remandamus jurisdiction are well established in this court. [00:30:36] Speaker 02: In addition, there must have no alternative other than remedial relief at the pre-trial stage. [00:30:47] Speaker 02: The sole claim that my opponent, well, I heard my opponent make several arguments is the why. [00:30:52] Speaker 02: That doesn't apply. [00:30:54] Speaker 02: First, he says that, well, this involves the ability of the appellate judges to sit. [00:31:00] Speaker 02: But as the court explained in Cobell, the reason it found it necessary to assert an endamist jurisdiction in that case is because [00:31:12] Speaker 02: There was a claim of personal bias against Mr. Kieffer, who was appointed by Judge Lambert to serve as a court monitor. [00:31:20] Speaker 04: But I mean, I thought the court was getting out to the district court's authority as well. [00:31:27] Speaker 02: Yeah, to issue the writ, to issue the writ, to reach in and issue the writ. [00:31:32] Speaker 04: Well, in other words, I'm just suggesting that given that this CMCR is [00:31:41] Speaker 04: a court of record. [00:31:46] Speaker 04: I'm not clear why you want to frame your argument simply in terms of judicial partiality. [00:31:53] Speaker 04: I mean, your brief says, you know, doesn't make an absolute statement that that is the limit. [00:32:03] Speaker 02: As the case explained, the reason the courts ordinarily [00:32:10] Speaker 02: pass on those claims at the pretrial stage is because they simply cannot detect at the post-trial stage whether judicial partiality has impacted upon the judge's ruling. [00:32:25] Speaker 02: So they have to reach it in the pretrial stage before it can infect the proceedings. [00:32:29] Speaker 02: Now, there were indeed, as Your Honor suggests, two parts of the Cobell case. [00:32:34] Speaker 02: And in that case, Judge Lamberth appointed Mr. Keefer to two positions. [00:32:39] Speaker 02: The first was as a court monitor to see how the Department of the Interior was administering the Indian Trust Fund. [00:32:50] Speaker 02: Mr. Cobell serves as the, Mr. Keefer serves as the court monitor. [00:32:54] Speaker 02: He appoints him as a special master. [00:32:57] Speaker 02: During the time that he was acting as a court monitor, he so injected himself into the operations of the Department of the Interior. [00:33:08] Speaker 02: particularly with respect to the Indian Trust Fund, that the government deemed it necessary to step in to get him to stop. [00:33:16] Speaker 02: And it was because of the way he was acting, and not simply because he was appointed as a court monitor, but because of the way he was conducting his operations, precluding the Department of Interior for conducting its operation, that the court found it necessary to step in. [00:33:31] Speaker 02: Now, during the time that Mr. Kieffer was serving as the court monitor, [00:33:36] Speaker 02: He was attending ex parte meetings within the Department of the Interior. [00:33:41] Speaker 02: He was acting, as the Court described, as essentially the Inspector General of the Department of the Interior criticizing its activities. [00:33:50] Speaker 02: And what the Court held is that you can't be a special master because the special master position is a judicial position. [00:33:59] Speaker 02: and you have an image of bias. [00:34:02] Speaker 02: You appear for all intents and purposes to be biased, and therefore you have to be disqualified under Section 455. [00:34:09] Speaker 03: Well, it's a separation of powers concern, right, which is what the petitioner is arguing. [00:34:15] Speaker 03: We have here a separation of powers concern. [00:34:18] Speaker 03: So I just wanted to ask you that question. [00:34:21] Speaker 03: Why would the government [00:34:23] Speaker 03: not want a determination of the validity of this body before sinking its time and resources into something that may be vulnerable to a structural challenge eventually. [00:34:35] Speaker 02: First, Your Honor, I think what we want is kind of irrelevant. [00:34:38] Speaker 02: The Court either has jurisdiction or it doesn't. [00:34:41] Speaker 02: Let's say we think we have jurisdiction. [00:34:45] Speaker 03: I'm not saying that that's what I believe, but let's say for the sake of delving into this aspect of the argument that our jurisdiction is not removed for reasons. [00:34:56] Speaker 03: And so then the question is, do we exercise the All Rights Act power in aid of our jurisdiction? [00:35:06] Speaker 03: And the question there is, given the precedence that you're discussing that talk about whether the [00:35:16] Speaker 03: defect is a defect that you really need to change prospectively. [00:35:21] Speaker 03: I'm not sure there's a remedial position that you can offer us assuming that there may be a defect under the Appointments Clause or the Commander in Chief Clause. [00:35:34] Speaker 03: Do you have a remedial position you can offer us that wouldn't unwind everything you would have done in the interim if we don't intervene? [00:35:45] Speaker 02: your questions in turn. [00:35:48] Speaker 02: First, with respect to the fact that the smacks of separation of powers, similar to one of the claims that's addressed here, it wasn't simply the fact that this was a separation of powers claim that caused this court to exercise this mandamus power, it was the fact that [00:36:06] Speaker 02: It was the way that Mr. Keefer was conducting his operations that needed immediate remediation because he was frustrating the Department of the Interior in administrating the Indian Trust Fund. [00:36:17] Speaker 04: Well, they're making the argument it's frustrating the intent of Congress in passing the 2009 Act, creating a court of record. [00:36:28] Speaker 04: I mean, pressing their argument. [00:36:30] Speaker 03: And or violating the Constitution. [00:36:31] Speaker 03: I mean, the Appointments Clause has very grave interest that it serves that has to do with accountability and, you know, the formal participation of the two [00:36:43] Speaker 03: in the employment of particular officers, be they principal or inferior. [00:36:48] Speaker 02: Of course, I'll get to that argument next. [00:36:50] Speaker 02: But the next step is, why wouldn't we like you to resolve this now? [00:36:56] Speaker 02: One, because you don't have jurisdiction. [00:36:58] Speaker 02: Two, because it's the overarching intent of Congress to avoid piecemeal litigation. [00:37:01] Speaker 02: And that's precisely what this is. [00:37:03] Speaker 04: even on the assumption that Congress wanted a court of record with judges individually appointed and confirmed by the Senate? [00:37:16] Speaker 04: In other words, I thought that's not to restate, but that's the thrust of Judge Pillard's question, isn't it? [00:37:24] Speaker 02: Well, I will reach that argument in turn. [00:37:28] Speaker 02: That involves the separation of power. [00:37:30] Speaker 02: They're making a number of assumptions here concerning the statutory requirements that I don't think are warranted. [00:37:36] Speaker 04: And I understand that. [00:37:37] Speaker 04: That's why I asked the question. [00:37:39] Speaker 04: But if I want to understand your answer. [00:37:42] Speaker 02: Again, the fact that this is a constitutional claim, the fact that it's an important issue is entirely beside the point. [00:37:49] Speaker 02: If you don't have jurisdiction, you don't have jurisdiction, regardless of what we might like. [00:37:55] Speaker 04: Now, the question was assume we have jurisdiction for purposes of this question. [00:38:01] Speaker 04: That was Judge Pillard's question. [00:38:05] Speaker 02: I would fall back on my second point, then, that the overarching purpose of Congress was to avoid piecemeal litigation. [00:38:12] Speaker 02: And that's simply the answer. [00:38:17] Speaker 02: That's our objective, too. [00:38:19] Speaker 02: But of course, let's go on to the merits of the second product. [00:38:22] Speaker 04: I mean, we don't want to get into what is the government's objective, all right, in taking this position. [00:38:27] Speaker 04: It's got to be that the government is convinced that this court lacks jurisdiction, and that is the end of the [00:38:35] Speaker 04: matter. [00:38:36] Speaker 02: Well, that's our first point with respect to main name-ish, yes. [00:38:40] Speaker 02: Absolutely. [00:38:42] Speaker 03: But the point you were making is that were we to have jurisdiction, you believe that we should not exercise it because we'd have a full opportunity to reach this issue later on. [00:38:53] Speaker 03: That's correct. [00:38:54] Speaker 03: And so let's talk a little bit about the two claims that they've raised. [00:39:01] Speaker 03: And I'm particularly interested in your position on the Appointments Clause. [00:39:04] Speaker 02: First of all, I think it's [00:39:05] Speaker 02: I think it's important enough that we not lose sight of the mandamus framework. [00:39:10] Speaker 02: And what mandamus jurisdiction means is that the court below was so wrong that it constituted an abuse of authority. [00:39:19] Speaker 02: The petitioner has not even attempted to explain how he thinks he can satisfy that standard here. [00:39:26] Speaker 02: Now, what we understand his claim to be [00:39:30] Speaker 02: relates to the appointment provision relating to appellate military judges on the United States Court of Military Commission review, 10 USC 950F. [00:39:40] Speaker 02: It provides something like this, and I'll just try to paraphrase, that the Secretary of Defense can assign from among the appellate military judges of the Armed Forces [00:39:53] Speaker 02: judges to serve on a part-time role on the United States Court of Military Commission review. [00:39:59] Speaker 02: Now, the petitioner makes two claims and is briefly related to them. [00:40:02] Speaker 02: First, he says that that makes them principal officers, and that as such, as principal officers, they need to be separately appointed and confirmed under the Constitution. [00:40:21] Speaker 02: It's difficult for us to understand how the Court of Military Commission review could have been wrong in rejecting that claim when the action that occurred here falls almost squarely within the ambit of the Supreme Court's decision in Weiss. [00:40:41] Speaker 02: In Weiss, a claim was likewise made that the judges of the United States Marine Corps Navy Court of Review [00:40:50] Speaker 02: by virtue of their assignments, needed a reappointment because they were assuming different responsibilities. [00:41:03] Speaker 04: On a court of record. [00:41:06] Speaker 02: I don't think that matters in the least. [00:41:10] Speaker 04: Well, it certainly does. [00:41:12] Speaker 02: Well, they called this a court of record. [00:41:16] Speaker 02: They didn't call that a court of record. [00:41:18] Speaker 02: But the point in that case... That's what Congress called it. [00:41:22] Speaker 02: It called this a court of record. [00:41:24] Speaker 04: Yes. [00:41:25] Speaker 04: And so they argue it's a fifth Article I court. [00:41:32] Speaker 02: It's another Article I court. [00:41:34] Speaker 02: But the point of the Weiss case was that... And Weiss wasn't dealing with such courts. [00:41:42] Speaker 02: I think the analysis is still the same and it doesn't change in the least. [00:41:48] Speaker 02: What the Weiss Court held [00:41:51] Speaker 02: was, first of all, the Weiss Court did not look at the question whether these were principal or subordinate officers, or principal or inferior officers. [00:41:59] Speaker 04: Right, but it also didn't look at whether it was a court of record, whether it was an Article I court. [00:42:05] Speaker 04: So you can argue it's persuasive, but it's not binding on this issue. [00:42:09] Speaker 02: No. [00:42:10] Speaker 02: But they're both Article I courts. [00:42:13] Speaker 02: Which is the both? [00:42:15] Speaker 02: The United States Navy Marine Court order review. [00:42:22] Speaker 02: It's not a merely administrative body. [00:42:24] Speaker 02: It performs judicial functions and has judicial responsibilities. [00:42:29] Speaker 02: The court found that by virtue of these officers' appointments, [00:42:35] Speaker 02: as commissioned officers and confirmations as principal officers, that was all that was necessary to warrant their assignment to the Navy Marine Corps Court of Review. [00:42:47] Speaker 02: The court didn't consider in one way, shape, or form whether they were principal or inferior officers. [00:42:54] Speaker 02: It didn't need to, as I said. [00:42:56] Speaker 02: by virtue of their appointments and confirmations. [00:42:59] Speaker 04: Would you agree the court would have had to have considered that if Congress had said we're creating an article on court? [00:43:06] Speaker 02: No, I wouldn't. [00:43:07] Speaker 04: I won't think that matters. [00:43:08] Speaker 04: I thought so, yeah. [00:43:09] Speaker 03: All right. [00:43:10] Speaker 03: So your position is that the U.S. [00:43:14] Speaker 03: Court of Military Commission Review judges are inferior officers? [00:43:18] Speaker 02: I don't think we need to reach that question, Your Honor. [00:43:21] Speaker 02: I would, my position, my position would be that they were appointed by the President and confirmed by the Senate. [00:43:29] Speaker 02: And under Weiss, that's all that's required. [00:43:32] Speaker 03: But Weiss, as you can see, did not deal with appointment of individuals in that posture, too. [00:43:39] Speaker 03: a role of a principal officer. [00:43:40] Speaker 03: So under your argument, it's a very sweeping argument that I don't think we have precedent on, either from the Supreme Court or this court directly, that would say that somebody who's an assistant attorney general doesn't need separate confirmation to be assigned to be the attorney general or someone who's assistant secretary of state could be secretary of state without a separate appointment. [00:44:03] Speaker 02: Is that? [00:44:03] Speaker 02: Well, certainly they couldn't make a major general the secretary of agriculture. [00:44:08] Speaker 03: The analogy... You're saying that Germaneness is the only limitation on that? [00:44:13] Speaker 02: Yes, I would suggest that, yes. [00:44:15] Speaker 02: And I think that comes through both in the waste majority opinion and Justice Scalia's concurring opinion. [00:44:22] Speaker 02: And the reason that he signed on the majority opinion was because of the Germaneness analysis which I think applies with equal oars here. [00:44:32] Speaker 02: Now my opponent points out the fact that [00:44:35] Speaker 02: Congress creates thousands of second lieutenants every year. [00:44:40] Speaker 02: That's not the case with these officers. [00:44:44] Speaker 02: Both of these officers were confirmed to the grade of colonel. [00:44:48] Speaker 04: Along with a thousand others, right? [00:44:50] Speaker 04: No, not along with them. [00:44:51] Speaker 04: When was Lieutenant Colonel Ward? [00:44:54] Speaker 04: What is his appointment history? [00:44:57] Speaker 02: He was appointed... Well, where would we find it? [00:45:01] Speaker 02: You would find it in the congressional record, which is on a footnote in our brief. [00:45:07] Speaker 02: Let me talk a little bit about Lieutenant Colonel Ward. [00:45:14] Speaker 02: Lieutenant Colonel Ward is now retired from the armed forces. [00:45:18] Speaker 02: Lieutenant Colonel Ward was never a member of the merits panel in this case. [00:45:25] Speaker 02: Eric Krauss, United States Army, is a member of Colonel Eric Krauss. [00:45:29] Speaker 02: United States Army is a member of this panel. [00:45:31] Speaker 02: Lieutenant Colonel Jeremy Winter is a member of this panel. [00:45:36] Speaker 02: I think the source of confusion, and I hate to emerge here from my analysis, is the fact that Colonel Krauss had refused himself from involvement in the Cotter case. [00:45:49] Speaker 02: Cotter sought to intervene in this case because Colonel Krauss [00:45:55] Speaker 02: had recused himself from acting in the Cotter case. [00:45:59] Speaker 02: He also recused himself on the question of intervention. [00:46:03] Speaker 02: And the court substituted Lieutenant Colonel Quincy Ward on that single issue. [00:46:09] Speaker 02: But if you will look at the order of the United States Court of Military Commission review denying the Appointments Clause claim, Lieutenant Colonel Krauss signed that order. [00:46:23] Speaker 02: Now, let me talk a little bit about the appointment history of these officers. [00:46:28] Speaker 02: Now, my opponent says that thousands of officers are promoted each year. [00:46:32] Speaker 02: And that's probably right. [00:46:33] Speaker 02: Every time a West Point graduating class in my day came up in June, Congress was sent a list of all these officers. [00:46:43] Speaker 02: In the case of Colonel Crouse, he was confirmed by the Senate in 2011. [00:46:48] Speaker 02: 25 officers were on that board, were on that list. [00:46:54] Speaker 02: 2011, rather. [00:46:56] Speaker 02: Lieutenant Colonel Weber was appointed and confirmed to the grade of Colonel in 2014. [00:47:02] Speaker 02: 18 officers were selected for promotion on that board. [00:47:11] Speaker 02: Incidentally, the promotion list identified them as judge advocates. [00:47:20] Speaker 02: Certainly, in the context of the Military Commissions Act, [00:47:24] Speaker 02: Having been enacted in 2006 and revised in 2009, as Justice Souter acknowledged in his concurring opinion, there is a very reasonable probability that one of these officers was going to get involved in this matter. [00:47:43] Speaker 02: Indeed, as Colonel Winthrop pointed out in his monumental treatise, since the Revolutionary War, military officers have been involved in adjudicating [00:47:53] Speaker 02: war crimes litigation. [00:47:55] Speaker 02: Today, every commissioned officer from the lowest second lieutenant, or ensign, to the chief of staff of the Army are responsible for administering the law of war. [00:48:06] Speaker 03: They're responsible for it. [00:48:13] Speaker 03: If it made a difference in our deliberation, whether now or at a later time, whether the judges on the Court of Military Commission review are principal officers or inferior officers, how do you contend with, and this is a bit unusual as a military court because [00:48:37] Speaker 03: As Judge Rogers was saying, it's designed to be a court of record. [00:48:40] Speaker 03: It gives a lot of independence and finality to these judges. [00:48:44] Speaker 03: The only review from their decisions is to this court. [00:48:49] Speaker 03: They are protected against removal except for good cause or military necessity, and there's a statutory safeguard against anyone taking action against them based on any decisions. [00:49:01] Speaker 03: that they make, which again seems to insulate them from supervision within the executive branch. [00:49:07] Speaker 03: And that's a very central criterion in our Appointments Clause jurisprudence, whether someone is supervised by another officer or is instead the principal officer kind of at the top of the heap. [00:49:23] Speaker 03: So let's say it mattered to your position that these judges are, in fact, not principal officers. [00:49:30] Speaker 03: How would you make that case? [00:49:33] Speaker 02: First of all, before I answer that question, let's not lose sight of the fact that we're on a mandamus jurisdiction. [00:49:38] Speaker 02: And our function here is to determine whether the court below was completely off the reservation in relying upon the wise case. [00:49:53] Speaker 02: Certainly an argument can be made that they are inferior officers if we had to make that argument. [00:49:57] Speaker 02: We didn't make it. [00:49:58] Speaker 02: We didn't take a position one way or the other. [00:50:01] Speaker 02: They're appointed by the, or signed rather, by a member of the cabinet, not by the president. [00:50:09] Speaker 02: They're removable by a member of the cabinet, not by the president. [00:50:13] Speaker 02: And they are, in a very real sense, an intermediate appellate court. [00:50:21] Speaker 02: Maybe not by an Article I court, as in the case of the members of the military appellate court, but they are an intermediate appellate court. [00:50:28] Speaker 02: Indeed, if finality is the determinant, there are many officers in the military commission process that have some final say with respect to whether a case goes forward in the military commission system. [00:50:43] Speaker 02: Military judge, enter a finding of not guilty. [00:50:47] Speaker 02: Military officers on the court can acquit. [00:50:51] Speaker 02: So I think it's important to understand that as Justice Souter pointed out in his concurring opinion that these factors, none of them are determinative. [00:51:06] Speaker 02: And that when the question is close because they are not determinative, it's up to Congress to have the say and that we should defer to Congress unless [00:51:18] Speaker 02: but Congress is completely off the wrench on that end. [00:51:20] Speaker 03: It would have been helpful had Congress spoken more definitively on this, but I think you're right in pointing to various indicia on the one hand. [00:51:29] Speaker 03: Well, I won't go through them, but it's not entirely [00:51:35] Speaker 03: I guess it would be helpful to us given that this is our precedent for you to address with some specificity the implications of the intercollegiate broadcasting case, the case dealing with the copyright royalty judges. [00:51:56] Speaker 02: as I recall, based upon the, among other things, the removability and the finality of the judges or whatever they were on that court, that they were, in fact, superior officers. [00:52:11] Speaker 02: But I would simply point out that unlike this case, they were not appointed and confirmed by the President, so it really isn't terribly helpful. [00:52:22] Speaker 02: If I may, let me turn very briefly to. [00:52:27] Speaker 02: Let me see what else I need to talk about here on that. [00:52:31] Speaker 05: Your time is up. [00:52:33] Speaker 05: No more questions. [00:52:35] Speaker 05: So does Mr. Paredes have any time left? [00:52:54] Speaker 01: Just to quick clarify, just in case I was misunderstood, Judge Rogers, you asked if section, or part of section 72 was repealed. [00:53:04] Speaker 01: I believe some of it was abrogated after Bermedian was struck down. [00:53:08] Speaker 01: I was specifically referring to section 950 J.B. [00:53:11] Speaker 04: That was... And so was I. Okay, I'm sorry. [00:53:13] Speaker 01: I just wanted to make sure. [00:53:14] Speaker 04: I'm clear. [00:53:15] Speaker 04: Okay. [00:53:16] Speaker 01: Yeah. [00:53:17] Speaker 01: And also with Belbacha, the government doesn't discuss it in their brief. [00:53:22] Speaker 01: I commend the court to read it. [00:53:25] Speaker 01: It was decided at a time, again, I must repeat, before the Supreme Court reversed this court in Boumediene. [00:53:35] Speaker 01: And so if anyone who had experience with the cases at that time, there was no judicial review anywhere for anything. [00:53:43] Speaker 01: It was simply because [00:53:44] Speaker 01: Given that the Supreme Court may reverse it, there was potential jurisdiction, just as this court has potential jurisdiction over the final judgment in this case now, that the court retained some residual remedial authority until that potential jurisdiction was finally extinguished by the Supreme Court. [00:54:01] Speaker 01: So again, I just commend this court to reading that in terms of analyzing the 2241E2 question. [00:54:11] Speaker 01: The government repeatedly complained about this being piecemeal litigation. [00:54:17] Speaker 01: And that's a little galling, because it is the government who took this appeal. [00:54:22] Speaker 01: It is the government who stopped al-Nashiri's military commission midstream, stopped it because al-Nashiri had succeeded for the first time in all military commission history of having a charge dismissed from a case for lack of jurisdiction. [00:54:38] Speaker 01: And it was the government who chose to stop the case and take it up to the CMCR and therefore created this issue in Al-Nashiri's case. [00:54:48] Speaker 01: And so if anyone has pieced up the meal, it is the government. [00:54:52] Speaker 01: And we are simply trying to make sure that if the government is going to do that, that they try him right the first time and not the third time. [00:55:02] Speaker 01: And I guess in terms of addressing this court's and my friend's specific arguments about why this is just completely answered by Weiss, I think this court's questions pointed up to the major problems. [00:55:15] Speaker 01: But I think it is important to just do an inventory of the differences between the criminal courts of appeal and the armed forces and the CMCR. [00:55:23] Speaker 01: The courts of criminal appeal are created by the judge advocates. [00:55:28] Speaker 01: Judge advocates are authorized by statute to create these essentially as review boards. [00:55:32] Speaker 01: Yes, they have judicial functions, but they are fully within the chain of command. [00:55:37] Speaker 01: And that was true, I should say, under the 2006 act. [00:55:40] Speaker 01: the body, the CMCR's predecessor under the 2006 Act, was created by the Secretary of Defense. [00:55:47] Speaker 01: So that parallelism was true under 2006. [00:55:49] Speaker 01: The problem is 2009 creates it as a standalone, independent, congressionally created court of record. [00:55:58] Speaker 03: So what if the remedy were to remove the restrictions on the supervision and removal of these judges and make it clear that they are inferior and not principled? [00:56:09] Speaker 03: That would solve your [00:56:10] Speaker 03: any kind of chief concern that you have and also solve the appointments problem right under WISE and everybody could go home. [00:56:18] Speaker 01: Well, what you're saying, Your Honor, is that we can strike down one part of the statute or the other. [00:56:23] Speaker 01: And striking down the independence provision, I think, in this context, is contrary to congressional intent. [00:56:29] Speaker 01: Because remember, in thinking about severability, which is what this is about, it's about Congress's intent. [00:56:35] Speaker 01: And it's clear that Congress intended this to be an independent court. [00:56:39] Speaker 01: That's why it went to the trouble of reforming the act. [00:56:42] Speaker 03: Well, it's a little unclear. [00:56:43] Speaker 03: I mean, I think there are some indications [00:56:45] Speaker 03: to the contrary, for example, given the Supreme Court's precedence, the use of the term assign in reference to the military judges versus appoint under subsection three, which isn't limited to the civilian judges, but there's a contrast there. [00:57:03] Speaker 03: So the assignment would suggest that maybe these are supposed to be inferior officers, just clearly assigned. [00:57:08] Speaker 01: Undoubtedly. [00:57:11] Speaker 01: I don't think the government would agree, but I think if there's a problem, everyone agrees Congress made one mistake. [00:57:16] Speaker 01: It made one of two mistakes. [00:57:17] Speaker 01: It either made a mistake in thinking that it could create a fifth independent court of record, or it made a mistake in thinking that it could assign military officers to that court. [00:57:30] Speaker 01: The assignment of military officers, I should point out, was something of a holdover from the prior law. [00:57:35] Speaker 01: And I think the legislative history certainly suggests that the retention of this authority to assign military officers as well was as much just a feeding forward of the prior act, primarily because the 2009 act had a separate section later on in the act being very careful to say that appointments made under the prior act or hereby ratified. [00:57:56] Speaker 01: They didn't want to disrupt what were ongoing cases. [00:58:00] Speaker 01: And so, to the extent that Congress retained the option for military officers, I think it was as much administrative as anything else. [00:58:08] Speaker 01: And ultimately, again, this court is forced to strike down something we clearly know Congress was insisting upon, because that was the major reform of the 2009 Act, was to make this an independent court of record with judicial independence. [00:58:21] Speaker 03: Well, there's independence and there's independence. [00:58:23] Speaker 03: I mean, there's an independent counsel who's not a principal officer. [00:58:26] Speaker 03: And who has independent in the title of her office. [00:58:31] Speaker 01: Sure, but remember the independent counsel is assigned to very discreet tasks. [00:58:35] Speaker 03: Oh, no, there are other grants for differentiation, but I'm just saying the fact that there was an interest here in independence. [00:58:40] Speaker 03: I mean, the Office of Legal Counsel does independent legal advice, but it's under the attorney general and the president and, you know. [00:58:46] Speaker 01: Well, that may be so, but I think Congress's overriding interest in independence was clear. [00:58:51] Speaker 03: And the only other example... If you give points towards principal officer status. [00:58:54] Speaker 01: Points towards principal officer status. [00:58:56] Speaker 01: And I would make the one example is Congress contemplated abolishing the CMCR in favor of the CAF. [00:59:02] Speaker 03: You said you were going to give a roster of features that differentiate. [00:59:05] Speaker 01: Yes. [00:59:05] Speaker 01: Yes, I'm sorry. [00:59:06] Speaker 01: So yes, removability obviously is one that we've discussed. [00:59:10] Speaker 01: But I think the other two are expectations of the office to be able to render final judgments for the United States on the most controversial national security cases in a generation. [00:59:20] Speaker 01: certainly is something we want the most politically sort of insulated individuals in our government to do. [00:59:28] Speaker 01: And additionally, and I think this is a major difference again from the courts of criminal appeals, is the line of review. [00:59:35] Speaker 01: Their decisions are reviewable nowhere else in the executive branch. [00:59:39] Speaker 01: Their decisions are reviewable only here. [00:59:42] Speaker 01: And in the Edmund, which is really the essential case on the status of these courts of criminal appeal in the military, that was a decisive factor for the Supreme Court, including Justice Scalia. [00:59:53] Speaker 01: It was the idea that all the decisions of the CCAs were reviewable either by the Court of Appeals of the Armed Forces, which is within the executive branch, or by the Judge Advocate General, which is also in the [01:00:08] Speaker 03: And what about the fact that the Secretary of Defense can, in fact, rescind punishments needed out by this body, or sustained by this body? [01:00:19] Speaker 03: There is some vacation authority. [01:00:23] Speaker 01: within the executive branch. [01:00:26] Speaker 01: Yes, the Secretary of Defense can vary. [01:00:28] Speaker 01: Well, no, I don't think that's correct. [01:00:30] Speaker 01: I think it would only be through the clemency process after the CMCR act, because once the CMCR acts, you have a final judgment that is only subject to this court's review. [01:00:39] Speaker 01: And again, taking your point just because of something my friend said, [01:00:46] Speaker 01: Every other actor in the military commission system who renders any kind of final judgment is subject to reversal within the executive branch. [01:00:54] Speaker 01: And again, the essential piece for the appointments clause is having executive control and accountability for the decisions that are made on behalf of the United States, the most important and unreviewable decisions made by the United States. [01:01:10] Speaker 01: And so the idea that Congress can sort of writ large a point [01:01:15] Speaker 01: thousands or even 18 inferior officers and then give a menu to the president and say pick any of these for the most consequential and unaccountable positions in our government strikes at the core of what the Appointments Clause is about and I would draw finally your honor just an analogy to [01:01:34] Speaker 01: to the line item veto. [01:01:36] Speaker 01: It's the same accountability problem that you had in the line item veto cases where you have Congress essentially giving, abdicating its responsibility to make the hard choices and be accountable for individual appointments or in the line item veto context spending by giving the president a buffet from which to pick. [01:01:53] Speaker 01: And that's inconsistent certainly with the history and rationale of the appointments clause as well as its text and the relevant case law. [01:02:00] Speaker 01: And we think that is clear for the purposes of man Davis. [01:02:05] Speaker 01: All right. [01:02:06] Speaker 01: Thank you.