[00:00:05] Speaker 00: Good morning. [00:00:18] Speaker 00: Good morning, Judge Griffith. [00:00:19] Speaker 00: Your honors. [00:00:21] Speaker 00: And may it please the court. [00:00:24] Speaker 00: I'd like to start with the appointments clause today, both because it's jurisdictional and because I think it's actually the most straightforward way of resolving this case. [00:00:31] Speaker 00: And by that I mean, [00:00:33] Speaker 00: In Lucia, the Appointments Clause was violated because SEC employees performed significant governmental duties without holding an office established by law. [00:00:43] Speaker 00: And here, Susan Crawford, a Defense Department employee, performed... She's more than that, right? [00:00:49] Speaker 03: She's more than that. [00:00:50] Speaker 03: She's a senior judge for the Court of Appeals for the Armed Forces. [00:00:54] Speaker 03: She's a constitutional officer. [00:00:55] Speaker 00: She's not, actually. [00:00:57] Speaker 00: So, and I would draw this court's attention to the distinctions between section 942, 10 USC section 942, and this court's own senior judge provision, 28 USC 371. [00:01:08] Speaker 00: And I think there are a couple key distinctions. [00:01:10] Speaker 00: The first one is, [00:01:11] Speaker 00: The statute itself, section 922E, I believe, sub 4, says she's only an officer of the United States when called upon to serve on a particular case by the chief judge of the Court of Appeals for the Armed Forces. [00:01:22] Speaker 00: So Congress has already determined she is not an officer of the United States absent that pre-condition. [00:01:29] Speaker 03: Well, if we disagreed with you on that, if we read the statute differently, where are you with your appointments clause? [00:01:34] Speaker 00: Well, respect to which, actually, that provision says she's not. [00:01:38] Speaker 03: If we disagree with you, and I disagree with you, then I thought she is a constitutional officer as a senior judge on that. [00:01:44] Speaker 03: Then where are you then on that? [00:01:48] Speaker 00: Well, then we have a really profound Germaneness problem. [00:01:53] Speaker 00: In Shoemaker, the Supreme Court sets out the original sort of test for Germaneness. [00:01:57] Speaker 00: The Supreme Court picks up on that in Weiss, which in the military context is pretty open-ended, because military officers are given a broad ambit to do basically anything they're told to do. [00:02:07] Speaker 00: Let me just first step to say, a judge on the Court of Appeals for the Armed Forces [00:02:11] Speaker 00: is only given statutory authority to preside on the Court of Appeals for the Armed Forces, and a senior judge isn't even a narrower category of individual. [00:02:20] Speaker 00: Their duties are even more narrowly confined to only performing judicial duties on cases where they're called to serve by the chief judge of the Court of Appeals for the Armed Forces. [00:02:30] Speaker 00: simply as a statutory matter. [00:02:32] Speaker 00: Nothing in section 942, the statute the government relies upon to create this office, if you assume it's an office, nothing in that, in any way, shape or form, makes the duties of a convening authority of a military commission or any other military tribunal germane to those basic duties and responsibilities she's given under the statute. [00:02:53] Speaker 00: Congress certainly could have made her [00:02:55] Speaker 00: What I understand the government's arguing to be is that she's basically a principal officer at large for the remainder of her life. [00:03:01] Speaker 00: The government would not have an objection to her. [00:03:04] Speaker 00: No one could reasonably object to her being designated the Secretary of Agriculture, or the Attorney General, or the Deputy Attorney General, or a judge on this court if you take the government's argument seriously. [00:03:15] Speaker 00: But that's just not what Congress said in the statute. [00:03:17] Speaker 00: In the statute, Congress said, [00:03:18] Speaker 00: First of all, Congress said, you're only an officer when called upon to serve on the court. [00:03:22] Speaker 00: But even bracketing that broader question aside, taking the most extreme form of the government statutory argument on its face, Congress also said, these are the only things you're allowed to do as an officer. [00:03:32] Speaker 00: And if you go beyond that remit, it's simply not up to the Secretary of Defense to designate her to be the military commission convening authority, because that's simply not an authority that Congress believed she ever would have. [00:03:45] Speaker 00: Now, if I could turn actually to what I think is the narrowest way of resolving this case, and that would be to vacate on statutory grounds. [00:03:54] Speaker 00: The CMCR agreed with us that our interpretation of section 948H, under which officer is given its statutorily defined meaning and official is given its technical but Black's law dictionary defined meaning of an office holder, that that's a plausible reading of the statute. [00:04:12] Speaker 00: And accepting that my friend's interpretation of the statute is also plausible. [00:04:17] Speaker 00: Ours is the only one that doesn't raise any constitutional problems at all. [00:04:21] Speaker 00: Whereas theirs drives this court into what I think can only be described as a thicket of constitutional questions, including this Germaneness question that we just spoke about. [00:04:30] Speaker 00: And how this court resolves any of those, if this court resolves those constitutional questions in my friend's favor, it's going to be significantly weakening the guardrails around the administrative state in ways that I doubt this court is going to be in a position to predict when deciding this case. [00:04:47] Speaker 00: And so I think just as a statutory matter, just as a Clark versus Martinez constitutional avoidance, if we put forward a plausible argument and they put forward a plausible argument, ours has to prevail because ours is the only one that doesn't drive this court into a constitutional morass under the Appointments Clause. [00:05:05] Speaker 00: But I would also say, if I can defend our argument. [00:05:08] Speaker 04: So you're defending your position because we would have to decide fewer constitutional questions under your view? [00:05:12] Speaker 00: You'd have to cite no constitutional questions under our view, because we also think, and if I can, I think our reading of the statute is just better. [00:05:20] Speaker 00: It preserves a core distinction between military and civilian officials, which is extremely salient in Title X, which is to be expected. [00:05:28] Speaker 00: It's consistent with the history of military tribunals, where again, prior to Crawford, there has never been a freestanding convening authority to preside over any kind of military tribunal. [00:05:40] Speaker 00: If you go back to [00:05:42] Speaker 00: The Second World War, it's General Eisenhower, it's General MacArthur, it's General Steyer in the Yamashita case. [00:05:48] Speaker 00: And this issue, not under Appointments Clause terms, but actually gets discussed a little bit in the Yamashita case, if you look to about page 11, where there's a discussion about what is convening authority in a military commission context, and it's a duty, it's a responsibility. [00:06:02] Speaker 00: I would also say that [00:06:04] Speaker 00: Our reading has been applied throughout, basically since 2006, a majority of the time our reading of the statute has been applied. [00:06:13] Speaker 00: The Secretary of Defense designated the Deputy Secretary of Defense initially, designated the General Counsel of the Navy. [00:06:20] Speaker 00: designated other retired military officers, all of these people, at least certainly as a statutory matter, and we would say probably as a constitutional matter as well, are individuals being designated in authority that the Secretary of Defense is given the ability to delegate. [00:06:36] Speaker 00: I would also just say one other thing about our reading. [00:06:39] Speaker 00: I also think our reading is the only one that actually makes sense of the statute. [00:06:44] Speaker 00: Congress certainly could have, as it did, for example, with CMCR judges or the chief prosecutor or the chief defense counsel, create a distinct separate office of the convening authority, capital C and capital A convening authority. [00:06:57] Speaker 00: It didn't do that. [00:06:59] Speaker 00: It could have given the Secretary of Defense a general housekeeping statute, the way the Secretary of Transportation did in Edmond or the way the SEC does under the Securities and Exchange Act. [00:07:09] Speaker 00: It didn't do that. [00:07:09] Speaker 00: The Secretary does not have the general appointing power that many other department heads are given by statutes. [00:07:15] Speaker 03: Isn't it easier for us just to read the statute to say that it doesn't include mere employees? [00:07:24] Speaker 03: that we have to read the Appointments Clause into this, and then the question becomes whether Crawford was a constitutional officer or not. [00:07:36] Speaker 00: Well, sure. [00:07:37] Speaker 00: Accepting your initial proposition that her being a senior judge on the Court of Appeals for the Armed Forces makes her a principal officer in perpetuity. [00:07:44] Speaker 00: And I would like to address some of the other problems with that if I can. [00:07:48] Speaker 00: But assuming that, then perhaps yes. [00:07:50] Speaker 03: I was just trying to get your point. [00:07:52] Speaker 03: You're trying to make it easy for us, and we appreciate that. [00:07:54] Speaker 03: I do. [00:07:55] Speaker 03: We appreciate that. [00:07:56] Speaker 03: And I'm just wondering if there's another way to make it easier. [00:07:59] Speaker 03: We do that all the time in constitutional avoidance. [00:08:02] Speaker 03: Read statutes. [00:08:03] Speaker 03: in a certain way to avoid the constitutional issue. [00:08:05] Speaker 03: I just wonder why we can't read this statute just to say, you know, convening authority cannot be a mere employee. [00:08:13] Speaker 03: Granted, you're on that. [00:08:15] Speaker 03: But that's not what we have here. [00:08:16] Speaker 00: We don't have a mere employee. [00:08:18] Speaker 00: So that is our reading of the statute. [00:08:20] Speaker 00: And so if that's the statutory interpretation, [00:08:22] Speaker 03: So that's the ease you're talking about? [00:08:24] Speaker 03: It is. [00:08:25] Speaker 00: Simply construe it to not include employees, to not be this implied office creation statute. [00:08:31] Speaker 00: Congress put those words in the statute for a reason. [00:08:34] Speaker 03: Then the question becomes whether we agree or not with your characterization of [00:08:38] Speaker 03: Judge Crawford. [00:08:39] Speaker 00: That's right. [00:08:40] Speaker 00: If I can point to a few other things which I think undermine that conclusion. [00:08:43] Speaker 00: So again, I think you have a germane-ness problem. [00:08:46] Speaker 00: And there are all sorts of people who have various titles of senior status and are available to serve in government in various ways. [00:08:52] Speaker 00: And so embracing this idea that anyone who is given any kind of quasi-title in retirement is perpetual. [00:08:59] Speaker 03: But that's not here. [00:09:00] Speaker 03: I mean, you've got somebody who's on the senior judge on the court of appeals for the armed forces. [00:09:04] Speaker 03: That sounds like, if you're looking for a pool from whom to draw convening authorities, boy, that'd be like the first group you'd go to. [00:09:14] Speaker 00: I would disagree for two fundamental reasons. [00:09:16] Speaker 00: First of all, convening authority is primarily a prosecutorial duty. [00:09:20] Speaker 00: There are judicial components, judicial acts to it, which are protected by statute. [00:09:23] Speaker 00: But it's primarily a prosecutorial function. [00:09:26] Speaker 00: And so to say it's the primary pool would be like saying the most obvious person to appoint as the acting attorney general would be a member of this court. [00:09:33] Speaker 00: I think that would be profoundly surprising to people in thinking about what Congress understood the duties of this court to be, and also what Congress understood the duties of the attorney general to be. [00:09:44] Speaker 00: But if I could point to a few other things, because I do think the government makes a lot of the senior judge title. [00:09:49] Speaker 00: And I think if you read the statute- Be careful. [00:09:51] Speaker 00: Be careful. [00:09:54] Speaker 03: You like seeing your judges. [00:09:55] Speaker 00: Well, I think the government needs to be careful because if you actually, for example, look at 28 USC 371, which I'm sure Judge Edwards is far more familiar with than I am in its details. [00:10:07] Speaker 00: But there are a couple distinctions that are made in there that I think are really quite important. [00:10:11] Speaker 00: For one thing, a senior judge on the Court of Appeals for the Armed Forces has no continuing obligations, responsibilities. [00:10:19] Speaker 00: They don't have to comply with the judicial code of conduct. [00:10:22] Speaker 00: They can take cases. [00:10:24] Speaker 00: They're completely exempt from any conflict of interest or federal statutes governing work for the government. [00:10:30] Speaker 00: A senior judge on this court has a continuing docket, has to be certified annually by the chief judges performing judicial functions. [00:10:37] Speaker 00: None of those continuing functions exist with a senior judge on the Court of Appeals for the Armed Forces. [00:10:42] Speaker 00: A senior judge on this court actually receives a salary. [00:10:48] Speaker 00: And I think that's actually important here in a specific way, because if you look, for example, at 371, you can either [00:10:54] Speaker 00: continue to be a senior judge on this court, and accept a salary, and you continue to be essentially an office holder. [00:11:00] Speaker 00: Or you can actually retire, like Judge Brown did, or Judge Kaczynski did out on the Ninth Circuit, and get a retirement annuity. [00:11:07] Speaker 00: And the statute's very clear about that distinction. [00:11:10] Speaker 00: And more like Judge Kaczynski on the Ninth Circuit, who's now taking cases as an attorney in his old court, Judge Crawford gets an annuity. [00:11:21] Speaker 00: And that's what the statute said. [00:11:22] Speaker 00: She gets an annuity. [00:11:23] Speaker 00: In fact, if you look at, I think it's page 26 or 27 of our initial appendix, and you actually look at her hiring action, her annuity is actually protected. [00:11:35] Speaker 00: It's not a statute on the books anymore. [00:11:38] Speaker 00: But she actually is allowed to continue to receive her annuity as a retired judge on the Court of Appeals for the Armed Forces, and then gets the SES salary on top of that. [00:11:47] Speaker 00: She is, in essence, a practicing lawyer for the government while she ostensibly holds the senior judge title. [00:11:54] Speaker 00: And I would point to one final factor. [00:11:56] Speaker 00: Sorry. [00:11:58] Speaker 00: I would just point to one final factor, which I really do think distinguishes a senior judge on the Court of Appeals for the Armed Forces from a senior judge on this court or even some of the, you know, like a magistrate court or something like that, is that she can't leave that office. [00:12:13] Speaker 00: She just, by virtue of being retired, by getting that annuity, she's just called a senior judge under the statute. [00:12:19] Speaker 00: And if you can't be impeached, if you can't be removed, if you can't resign from an office, [00:12:25] Speaker 00: then I strongly believe, I tend to believe that's actually not an office. [00:12:29] Speaker 00: It's just a title, particularly when it has no pay associated with it, it has no duties associated with it. [00:12:34] Speaker 04: Let's focus on the convening authority itself, right? [00:12:38] Speaker 04: So if the convening authority is an officer, I'd be interested to hear more about your thoughts about why you think [00:12:45] Speaker 04: it would be a principal officer as opposed to an inferior officer. [00:12:48] Speaker 00: So I think the most straightforward reason that a convening authority is a principal officer is that there are a number of actions that the convening authority takes that are done, again this is the statutory language, in her sole discretion, sole prerogative actually, and discretion. [00:13:02] Speaker 00: And that's statutorily protected. [00:13:04] Speaker 00: Section 949, I believe it's A, 949B sub A, actually prevents any sort of interference with her exercise of judicial discretion in any of her particular judicial acts. [00:13:16] Speaker 00: And I'll give you one example, which I think is pretty significant. [00:13:19] Speaker 00: She has clemency powers. [00:13:21] Speaker 00: So after a military commission has concluded and rendered its sentence and judgment, she can just decide, I reject that. [00:13:30] Speaker 00: and that double jeopardy has attached, I reject the sentence. [00:13:34] Speaker 00: And there's no review of that anywhere. [00:13:36] Speaker 00: Anywhere in the executive branch, anywhere in the judicial branch. [00:13:38] Speaker 00: She's a final decision-making authority on. [00:13:41] Speaker 00: And here, that judgment was exercised to confirm a sentence with life without parole. [00:13:45] Speaker 00: So it's a very serious exercise of unfettered, unreviewable discretion. [00:13:50] Speaker 00: And so I think that certainly puts her on the principal officer side of the line if you look at cases like. [00:13:56] Speaker 04: Can you identify other officials like the convening authority who [00:14:00] Speaker 04: have been classified as principal officers? [00:14:05] Speaker 00: The administrative law judges on the copyright appeals board, they were able to make final judgments about copyright issues and those judgments there were at least appealable to this court and that was enough for this court to say that makes them a principal officer [00:14:21] Speaker 00: And there's the remedy there. [00:14:22] Speaker 00: We can remove their tenure protections. [00:14:25] Speaker 00: Here, that can't actually be done. [00:14:26] Speaker 00: There's no tenure protection to remove here, in part because it's not an office. [00:14:30] Speaker 00: But it's also sort of just the way the statute is structured. [00:14:35] Speaker 00: You just couldn't take away those powers. [00:14:38] Speaker 00: And even if you could, they've already been exercised in this case. [00:14:40] Speaker 00: And so if you could prospectively, it would still be fatal to the jurisdiction in this case. [00:14:45] Speaker 00: I think the Federal Circuit's decision in Arthrex from a few months ago [00:14:49] Speaker 00: Largely the same analysis. [00:14:50] Speaker 00: To the extent anyone is making a final judgment or a final action in a case, that makes them a principal officer if that final action is not reviewable directly by a superior executive branch official. [00:15:03] Speaker 00: And there are a number of actions like that that she exercises. [00:15:07] Speaker 04: Are DC Circuit judges principal officers? [00:15:09] Speaker 00: I think so. [00:15:10] Speaker 00: I think you would be. [00:15:12] Speaker 00: And I want to say, I think most certainly senior level. [00:15:16] Speaker 04: Well, not in the executive branch. [00:15:17] Speaker 00: We're not an executive branch, but that's a fair point. [00:15:20] Speaker 00: But you are the courts of law, and so you're equated to department heads under the Appointments Clause. [00:15:26] Speaker 00: I would also add though, and this may, I think, also assuage any concerns you have about the interpretation of the statute, military officers above the rank of major are all nominated by the President and confirmed by the Senate. [00:15:41] Speaker 00: I don't know that there's a holding one way or another on whether or not that satisfies the principal officer condition. [00:15:46] Speaker 00: However, convening authority under 10 U.S.C. [00:15:51] Speaker 00: 822, which is the general court martial convening authority, [00:15:54] Speaker 00: And also, by tradition, has normally been exercised by the most senior officers in the military. [00:16:02] Speaker 00: We're talking general officers, and only the rarest of occasions would he even go down to the rank of colonel or lieutenant colonel. [00:16:08] Speaker 00: And all of those would meet the conditions of being a principal officer. [00:16:13] Speaker 00: And so if you simply interpret the statute the way sort of history would dictate, such a statute would be interpreted. [00:16:21] Speaker 00: If you would simply interpret the statute to sort of just say, look, if you want to, actually as it's been implied, so for example, the Deputy Secretary of Defense, also a principal officer, the general counsel of the Navy, [00:16:31] Speaker 00: also a principal officer, the general officers who have been variously designated as convening authority, also principal officers, at least under the appointments clause framework. [00:16:41] Speaker 00: So we're not asking for a test that's actually hard to apply. [00:16:44] Speaker 00: We're actually asking for the test that has been routinely applied. [00:16:47] Speaker 00: We're simply saying that in our case, in the case of Susan Crawford, and then... What is the general counsel of an agency, a principal officer? [00:16:55] Speaker 00: Well, he's nominated by the President and confirmed by the Senate. [00:16:59] Speaker 04: That's the test for principal officers? [00:17:02] Speaker 00: Well, it's certainly the condition. [00:17:03] Speaker 00: It's the constitutional precondition for someone to act as a principal officer. [00:17:07] Speaker 00: They must be appointed. [00:17:08] Speaker 00: That's also the default mode of appointment for inferior officers, but to the extent... There are lots of inferior officers who are PAS. [00:17:16] Speaker 00: Absolutely. [00:17:17] Speaker 00: And they may be inferior officers, but could they be, for example, eligible to be delegated what are, in essence, principal officer authorities? [00:17:26] Speaker 00: Because that's ultimately what we say Section 948H does. [00:17:29] Speaker 00: It's a delegation statute. [00:17:31] Speaker 00: It's actually very similar in some ways to the statute at issue in Lucia, which was [00:17:36] Speaker 00: 17 USC 78D-1 or something complicated like that, which was a broad delegation statute given to the Securities and Exchange Commission. [00:17:44] Speaker 00: And they used that statute to essentially delegate power to SEC employees. [00:17:48] Speaker 00: And the Supreme Court said, you can't do that. [00:17:50] Speaker 00: You have to appoint them first. [00:17:52] Speaker 00: Now the SEC had an appointment authority that it could use to remedy that at least prospectively. [00:17:56] Speaker 00: The Secretary of Defense does not have a similar appointment authority. [00:17:59] Speaker 00: But it's a fairly easy, frankly it's a fairly easy test to me and it has been met most of the time. [00:18:05] Speaker 04: So are you suggesting that principal officers can appoint other principal officers? [00:18:10] Speaker 00: Well, certainly, no, certainly department heads. [00:18:13] Speaker 00: The Securities and Exchange Commission was treated as essentially department head, as I understand it, in Lucia, so that it was given the lawful appointment authority, not unlike the Public Accounting Oversight Board issues that were up in Free Enterprise Fund, where you have essentially a principal officer committee, or sorry, department head committee. [00:18:31] Speaker 00: I just want to sort of return. [00:18:35] Speaker 00: If this is where confusion lies, we think, again, our interpretation of the statute, which avoids potentially difficult problems on this principal inferior officer distinction, is the best one. [00:18:46] Speaker 00: And in this case, she simply just was not any kind of officer. [00:18:50] Speaker 00: And even if you think that the senior judge status gave her some kind of residual officer remit, [00:18:56] Speaker 00: That's just a much niche. [00:18:58] Speaker 00: This is just not at your main duty to the responsibilities that Congress... May I ask you about your ex post facto argument? [00:19:05] Speaker 03: Sure. [00:19:05] Speaker 03: So as I understand it, you have a law of the case problem here, right? [00:19:10] Speaker 03: We've been down this road several times before, and if I understand your argument, you claim that class presents an intervening change in law. [00:19:20] Speaker 03: that requires us to look at this typically. [00:19:22] Speaker 03: But your argument about class has already been rejected by who? [00:19:25] Speaker 03: The First Circuit and the Sixth Circuit? [00:19:27] Speaker 03: That's been a losing argument twice. [00:19:30] Speaker 03: Why should we go against them? [00:19:34] Speaker 03: And when I read class, class is about guilty pleas. [00:19:37] Speaker 03: It doesn't stand for the broader proposition. [00:19:39] Speaker 03: I mean, you're arguing that class worked a fundamental change in the law of forfeiture constitutional challenges. [00:19:50] Speaker 03: My reaction is that you're asking class to do way too much work. [00:19:53] Speaker 00: I see I'm getting close to the end of it. [00:19:55] Speaker 00: No, no, no. [00:19:55] Speaker 00: Thank you. [00:19:57] Speaker 00: So first, we actually don't think you have to disagree with the sixth or first circuit. [00:20:02] Speaker 00: Because the sixth circuit actually doesn't analyze this question. [00:20:06] Speaker 00: I looked into it, and they didn't even have re-briefing after class, let alone re-arguments. [00:20:10] Speaker 00: So the sixth circuit, I think, was just operating on sort of a default presumption that the point error review applied. [00:20:16] Speaker 00: as it did before. [00:20:17] Speaker 00: The First Circuit does grapple with this somewhat, but the only issue actually before the First Circuit was whether class made what are essentially black legiment claims jurisdictional, because that's ultimately what class holds. [00:20:32] Speaker 00: If you remember many moons ago when this case was back on the on-bank court, this court relied on its line of authority. [00:20:39] Speaker 00: Delgado Garcia was the primary case this court relied upon. [00:20:43] Speaker 00: to say that a challenge to the constitutionality of a statute was not a black, legitimate claim. [00:20:47] Speaker 00: It was not a challenge to the government's power to hail you into court. [00:20:49] Speaker 00: as a consequence, was neither jurisdictional and had no special status. [00:20:54] Speaker 00: It was like any other constitutional objection that might get raised at trial. [00:20:58] Speaker 00: And in class, this court did the same exact thing. [00:21:01] Speaker 00: It actually sets the same exact page of Delgado Garcia to say that this is a straightforward holding. [00:21:05] Speaker 00: It's a per curiam and opinion, in fact. [00:21:07] Speaker 00: And the Supreme Court says no. [00:21:08] Speaker 00: Class, well, we call it class claims. [00:21:10] Speaker 00: But challenges to the Constitution and the statute are essentially black, legitimate claims. [00:21:15] Speaker 00: They are challenges to the government's power to prosecute you at all. [00:21:18] Speaker 00: Now, in the federal courts, that probably isn't a jurisdictional defect. [00:21:22] Speaker 00: I think there may be arguments that it is, but First Circuit says it's not. [00:21:25] Speaker 00: And that's primarily because the federal courts are freestanding institutions that have general jurisdiction. [00:21:30] Speaker 00: And so the constitutionality of a statute underlying an indictment doesn't ultimately undermine the power of the courts to adjudicate a case. [00:21:37] Speaker 00: In the military context, the power to prosecute and the power to adjudicate are actually one and the same. [00:21:42] Speaker 00: And that gets to the convening authority issue we talked about before, that the reason why a convening authority [00:21:48] Speaker 00: ineligibility to serve as a convening authority is a jurisdictional defect is because the court and the charges are all convened and created together. [00:21:57] Speaker 00: And so in the military context, and we listed a number of examples of situations where jurisdictional defects are not relevant, things are not jurisdictional in the federal courts, but are jurisdictional in the military courts. [00:22:09] Speaker 00: And so we would simply say that that's true with class claims, too. [00:22:14] Speaker 00: And lower military courts prior to class have actually held that. [00:22:17] Speaker 00: Court of Appeals for the Armed Forces has just never reached the issue. [00:22:20] Speaker 00: Although the Court of Appeals for the Armed Forces has reached similar types of issues, like the Assimilative Crimes Act, which is not even remotely jurisdictional in the federal court system, but is actually profoundly jurisdictional, subject matter jurisdiction in the military system. [00:22:32] Speaker 00: But I can make one other point, though, just on that. [00:22:36] Speaker 00: To distinguish, I think, the First Circuit's reading from ours, even if you accept that because the First Circuit was only concerned about it being jurisdictional or not. [00:22:44] Speaker 00: That was the bucket it was looking at. [00:22:45] Speaker 00: And we think class certainly opens the door to understanding constitutional challenges to a statute right where you're not gainsaying the facts at trial. [00:22:56] Speaker 00: You're not gainsaying anything in the indictment. [00:22:58] Speaker 00: But the constitutionality of the statute itself [00:23:01] Speaker 00: is a fundamental defect that implicates sort of core concerns of judicial administration. [00:23:07] Speaker 00: So in that way, it's a lot like Noyan or Glidden versus Zinook, where you have a fundamental defect and there's an important administrative interest. [00:23:18] Speaker 00: And if I could highlight what that important administrative interest is, is if you accept, as the Supreme Court held, that challenges to the constitutionality of a statute [00:23:27] Speaker 00: are, in fact, black-ledged menna claims. [00:23:30] Speaker 00: Well, what does that actually mean? [00:23:31] Speaker 00: What is black-ledged menna? [00:23:32] Speaker 00: Well, it means you can raise them in a post-trial habeas case without having to show cause and prejudice, where you're not subject to the plain-error review. [00:23:40] Speaker 00: It's going to be de novo review in a post-trial habeas case. [00:23:45] Speaker 00: But you can't do that on direct appeal. [00:23:47] Speaker 00: And I think, kind of, if it's still subject to plain error on direct appeal, [00:23:52] Speaker 00: but you can get de novo review on a post-trial habeas case. [00:23:56] Speaker 00: I just think that kind of rope-a-dope scheme is a problem of judicial administration, significant enough, and particularly given how rare actual class claims are, that it's significant enough to just not embrace plain error review when [00:24:10] Speaker 00: you're creating this kind of rope-a-dope appellate system that's going to, you know, protract criminal cases for years for really no profit, when the only question before the court is, again, nothing to do with the facts of the case, nothing to do with the indictment, just the, you know, the basic question, is the statute constitutional? [00:24:26] Speaker 00: So that would be certainly how we would distinguish the First Circuit from what we're arguing here. [00:24:32] Speaker 00: And we also just think it's the right answer. [00:24:34] Speaker 03: Let me ask you another question, but this is about your alleged solitary confinement claim. [00:24:40] Speaker 03: Do we have a sufficient factual record on which to, or are you asking us to kick that back to create a record on that? [00:24:49] Speaker 00: So we've certainly proffered facts that the government has not [00:24:53] Speaker 00: has not been tested in any significant way. [00:24:56] Speaker 00: I think just given the presumption of regularity that this court normally applies, the military regulation governing the segregation of detainees says what it says. [00:25:06] Speaker 00: And we're simply saying it's being applied. [00:25:08] Speaker 00: And this court can take judicial notice of the fact that Mr. Al-Balul is the only convicted one, convicted low value Guantanamo detainee. [00:25:16] Speaker 00: There are two detainee populations, a high value which is segregated entirely and a low value which is where he's always been. [00:25:22] Speaker 00: And as a consequence of that, he is the proverbial class of one. [00:25:26] Speaker 00: And as a consequence of that, he has been in solitary confinement for the better part of seven and a half cumulative years. [00:25:32] Speaker 00: And we think that's significant. [00:25:34] Speaker 00: And we think this court can address that. [00:25:36] Speaker 00: But if there are inadequate facts, it's certainly something the court can remit. [00:25:42] Speaker 03: OK. [00:25:42] Speaker 03: We'll take some time back on our vote. [00:25:44] Speaker 03: Thank you very much. [00:26:07] Speaker 02: Good morning and may it please the Court. [00:26:11] Speaker 02: The 2006 MCA authorizes the Secretary of Defense to designate any officer or official of the United States to convene military commissions. [00:26:21] Speaker 02: That's broad language on its face. [00:26:23] Speaker 02: And I take the principal issue here to be whether it's necessary for this Court to adopt a very narrowing [00:26:30] Speaker 02: countertextual reading of the phrase officer or official of the United States in order to resolve any appointments clause issues that might arise. [00:26:39] Speaker 02: We think that there's a much simpler way to avoid any appointments clause problem. [00:26:44] Speaker 02: And that is to interpret the secretary's designation of the convening authority as itself an appointment that satisfies the requirements of the appointments clause for inferior officers like the convening authority. [00:26:59] Speaker 01: If the statute had used the word... So do you read their argument or do you hear their argument to be that the convening, the appointed convening officer must be a principal officer? [00:27:11] Speaker 01: Yes, they have argued and made a kind of independent argument that the convening authority must be... Is that your understanding of their argument, that the appointed person must be a principal officer? [00:27:22] Speaker 01: I was listening and didn't ask. [00:27:24] Speaker 01: I'll ask in rebuttal. [00:27:25] Speaker 01: Go ahead. [00:27:26] Speaker 02: Yes. [00:27:26] Speaker 02: I think they have advanced two separate arguments, I think. [00:27:30] Speaker 02: And the principal officer argument is they have contended both that the convening authority is an inferior officer who must be appointed consistent with the appointments clause. [00:27:43] Speaker 02: And as an inferior officer, the inferior officer claim would be satisfied, in our view, by the secretary's designation, because the secretary is a head of department. [00:27:52] Speaker 02: And Congress, by authorizing him to designate the convening authority, has granted him power to appoint an inferior officer. [00:28:01] Speaker 02: Separately from that, they've also argued that the convening authority is a principal officer position. [00:28:07] Speaker 02: That would require a presidential appointment and confirmation by the Senate. [00:28:11] Speaker 02: The secretary couldn't do it. [00:28:13] Speaker 02: Correct. [00:28:13] Speaker 02: Under that theory. [00:28:14] Speaker 02: Under that theory. [00:28:16] Speaker 02: And our response to that theory is the Supreme Court's decision in Edmund, which held that [00:28:23] Speaker 02: judges on the military courts of appeals are inferior and not principal officers. [00:28:29] Speaker 02: And the reasoning that the Supreme Court applied to those judges applies equally to the convening authority. [00:28:38] Speaker 02: Coming back to the inferior officer point. [00:28:42] Speaker 04: Can you draw out the analogies? [00:28:44] Speaker 04: Why do you think this is an inferior officer under Edmund? [00:28:47] Speaker 04: What are the features that make it the same? [00:28:49] Speaker 02: The features that make it the same are, the most important one is the removability. [00:28:55] Speaker 02: The Supreme Court and Edmund, the removability of the judges. [00:29:02] Speaker 02: Those judges were removable without cause by the Judge Advocate General and the Supreme Court relied heavily on that fact. [00:29:09] Speaker 02: The same is true of the convening authority who is removable without cause by the Secretary of Defense. [00:29:15] Speaker 02: The petitioner has relied on provisions that [00:29:20] Speaker 02: limit the secretary's ability to influence the convening authority by a threat of removal with respect to his judicial acts in a particular case. [00:29:28] Speaker 02: Those same provisions apply to the judges that were at issue in Edmond, as the Supreme Court explicitly acknowledged. [00:29:34] Speaker 02: But the Supreme Court said that those provisions didn't make the judges principal officers, and the same is true for the convening authority. [00:29:41] Speaker 04: Yeah, can you maybe discuss a little bit more how those two things are related, the unlawful influence restrictions and removability? [00:29:50] Speaker 04: because they can be removed, but they also can't be influenced. [00:29:53] Speaker 04: So how does that affect the type of control that they have over the Convening Authority? [00:29:59] Speaker 02: The Secretary's ability to remove without cause remains a powerful tool for control, even though there are limits that provide a right for the defense if he were to remove the Convening Authority for [00:30:16] Speaker 02: or attempt to influence the convening authority with a threat of removal with respect to his judicial acts. [00:30:24] Speaker 02: We don't see those provisions as a protection for the convening authority, but rather as a right for the defense in a particular case. [00:30:34] Speaker 02: In other words, I don't think those provisions would, if the secretary were to remove the convening authority, he would be removed. [00:30:40] Speaker 02: And that may give rise to a claim on the part of defense that this [00:30:45] Speaker 02: violated his right to a fair trial under those provisions. [00:30:49] Speaker 02: But it doesn't protect the convening authority from removal. [00:30:51] Speaker 04: So you're saying the unlawful influence are not similar to, say, for-cause removal protections for the convening authority? [00:31:00] Speaker 02: The Supreme Court rejected that argument in Edmond. [00:31:02] Speaker 02: The Supreme Court noted these provisions and still held that the judges were inferior officers. [00:31:08] Speaker 04: So you think they're protections for the defendant. [00:31:11] Speaker 02: Right. [00:31:12] Speaker 02: And the Supreme Court in Edmond [00:31:15] Speaker 02: characterized, noted that those judges were removable without cause, and also discussed the same unlawful influence provisions. [00:31:24] Speaker 03: If you're right that it gives right to a defendant, if there was an unlawful removal, where does the defendant vindicate that right? [00:31:33] Speaker 03: Before us? [00:31:35] Speaker 02: Well, if it happened at the trial level in the military commission. [00:31:39] Speaker 02: And the military commission has adjudicated claims of unlawful command influence [00:31:45] Speaker 02: in other cases. [00:31:45] Speaker 02: I don't think there's been a claim in this case, but in other cases before. [00:31:49] Speaker 02: And the Secretary has, in fact, exercised his removal authority over the convening authority for military commissions relatively recently, as the petitioner notes. [00:32:03] Speaker 02: Our primary submission on the inferior officer claim, again, is that the Secretary's designation satisfies the purposes of the Appointments Clause. [00:32:12] Speaker 02: The Appointments Clause is designed to [00:32:15] Speaker 02: ensure political accountability for appointments. [00:32:17] Speaker 02: That's satisfied here. [00:32:19] Speaker 02: The Secretary of Defense is the responsible official for designating the convening authority. [00:32:23] Speaker 02: He's on the hook for that appointment. [00:32:26] Speaker 02: And if the statute had used the word appoint rather than designate, there's no [00:32:34] Speaker 02: statutory or constitutional significance or difference it would obtain, we would still have the same structure that we do here. [00:32:40] Speaker 02: And so we think that the cleanest way to avoid any constitutional problem is to say that the designation is an appointment that satisfies the Appointments Clause. [00:32:50] Speaker 02: And that would mean that the statutory phrase, any officer or official, can be given its ordinary meaning. [00:32:56] Speaker 02: Now, the petitioner's interpretation introduces a host of constitutional problems. [00:33:05] Speaker 02: Let me explain some of those. [00:33:06] Speaker 02: So under the petitioner's reading, the constitutional responsible appointing official is not the Secretary of Defense necessarily, but it's the official who first appointed the officer to his original position. [00:33:23] Speaker 02: And under the statute, that officer doesn't have to be the Secretary of Defense. [00:33:26] Speaker 02: The statute would allow the Secretary of Defense to designate an officer from some other department. [00:33:31] Speaker 02: Any officer or official of the United States [00:33:33] Speaker 02: an officer within the State Department or an officer at Justice or an officer in the Department of Agriculture. [00:33:39] Speaker 02: And if the secretary designated that person, then a secretary from another department would become the constitutional [00:33:45] Speaker 02: constitutionally responsible officer for the appointment, and that would actually diffuse the responsibility for the appointment. [00:33:52] Speaker 03: Excuse me, this gets a little metaphysical for me, so let me ask it in this way. [00:33:59] Speaker 03: If one looks at the responsibilities of a convening authority, they seem like they're significant adjudicatory responsibilities. [00:34:08] Speaker 03: Bear with me on that. [00:34:10] Speaker 03: We agree with that, Your Honor. [00:34:11] Speaker 03: And so they fall within the Appointments Clause. [00:34:15] Speaker 03: Yes. [00:34:15] Speaker 03: They fall within the Appointments Clause. [00:34:17] Speaker 03: At that point, isn't the simplest way for us to approach this, the approach that your friends have argued, and that is, if this is in fact someone who falls within the Appointments Clause, [00:34:35] Speaker 03: Shouldn't we read the statute in a way to say the secretary may not appoint a mere employee but has to appoint a constitutional officer? [00:34:46] Speaker 03: Is that what he's done here? [00:34:48] Speaker 03: What's wrong with that thinking? [00:34:51] Speaker 02: Because that would raise a germainness problem as applied to any officer or official whose prior appointment is [00:35:05] Speaker 02: raises a question whether it's germane to serve as the convening authority. [00:35:08] Speaker 02: So if the secretary were to designate someone from the State Department, then that officer, there would be a question. [00:35:16] Speaker 02: Well, does that appointment, is it germane so that that would be constitutional to be the convening authority? [00:35:22] Speaker 03: Do we avoid the germane-ness problem with your alternative and late-broad argument that, in fact, what we have with Senior Judge Crawford is someone who meets the germane-ness requirement? [00:35:35] Speaker 02: Yes, we agree that the appointment to the CAF would be sufficiently germane to serve as the convening authority. [00:35:42] Speaker 02: Why? [00:35:43] Speaker 02: Because the CAF is a body that is involved with very similar adjudication of military law questions. [00:35:53] Speaker 03: OK, and that raises my next question. [00:35:56] Speaker 03: And that is, why did you bring that so late? [00:35:58] Speaker 03: And what are we supposed to do with an argument that's brought so late? [00:36:03] Speaker 03: This is something that we've been at this a long time. [00:36:08] Speaker 03: And I can make the same argument to Council Member Lee. [00:36:11] Speaker 03: Why so late all of this? [00:36:14] Speaker 03: I mean, we have a set of doctrines that tell us what to do with late brought claims. [00:36:20] Speaker 03: And particularly when it's a claim seeking to invoke our jurisdiction, right? [00:36:27] Speaker 03: Haven't you forfeited that? [00:36:30] Speaker 02: I think both parties are in the having-made-arguments-late category, Your Honor, but I think that as the prevailing party below, we're entitled to defend the CMCR's judgment on alternative grounds. [00:36:43] Speaker 02: And that's all we're asking the court to do. [00:36:44] Speaker 03: And ultimately on this jurisdictional question, it's just a question of... So is there a forfeiture problem with your argument that we need to work around, or is there a law that applies to this? [00:36:53] Speaker 03: How should we... If I'm of the view that you have forfeited [00:36:57] Speaker 03: that this argument that Judge Crawford, that Senior Judge Crawford fits the bill here. [00:37:04] Speaker 03: Help me think that through. [00:37:07] Speaker 03: What do I do with that? [00:37:08] Speaker 02: Well, setting aside our primary submission is the Secretary's designation. [00:37:14] Speaker 02: Right. [00:37:15] Speaker 02: But our principal submission is that, again, as the prevailing party, we can defend the judgment on any ground that's proper. [00:37:21] Speaker 02: And since this is a jurisdictional claim that's brought very late into the process, I think it's appropriate for the court to just try to get the question right. [00:37:31] Speaker 03: As I understand and help me here, as I understand the law of forfeiture on jurisdictional claims, it works a little different for you than it does for Baloo. [00:37:42] Speaker 03: If someone's claiming that there isn't jurisdiction, you can bring that up any time you want. [00:37:47] Speaker 03: If you're claiming there is jurisdiction, [00:37:50] Speaker 03: Aren't you too late on that? [00:37:51] Speaker 02: I don't agree, Your Honor. [00:37:52] Speaker 02: I don't think we have an affirmative responsibility to anticipate a constitutional challenge to a duly enacted statute and a duly appointed officer and respond to it in advance. [00:38:05] Speaker 02: And so in this circumstance where that claim is brought so late in the process, then I think we're entitled again to defend the judgment below on that basis. [00:38:16] Speaker 02: And that the court ought to just treat the question as the jurisdictional question as, because it's jurisdictional, and we've agreed that it's jurisdictional, that in the military context, because the court is a creature of the convening authority, then [00:38:32] Speaker 02: the validity of the appointment of the convening authority can matter even at this late stage. [00:38:35] Speaker 02: But because of that, it's that kind of question, then the court should simply just either she was eligible as an officer or official of the United States or she wasn't. [00:38:46] Speaker 02: And the court can consider alternative arguments to support the CMCR's determination that she was. [00:38:52] Speaker 02: What do you think is your stronger argument? [00:38:54] Speaker 02: We think that the Secretary of Defense's designation counting as [00:39:01] Speaker 02: an appointment that satisfies all the purposes of the appointment process is our strongest and most straightforward argument. [00:39:08] Speaker 03: And the narrowest ground would be to say that she was a constitutional officer, right? [00:39:14] Speaker 03: If we took the alternative argument, that's a narrower ground for us. [00:39:18] Speaker 02: I think that's right. [00:39:18] Speaker 02: It would be a case-specific holding. [00:39:22] Speaker 02: But we think that the secretary's designation [00:39:29] Speaker 02: of Senior Judge Crawford was in effect ratified by Congress in 2009. [00:39:35] Speaker 04: If the convening authority is an inferior officer, then she wouldn't need to have been an officer in advance in order to be properly appointed by the secretary. [00:39:44] Speaker 02: That's exactly our primary argument. [00:39:46] Speaker 02: That's what I'm trying to say. [00:39:48] Speaker 02: Constitutionally, she could have been anyone at the time she was [00:39:52] Speaker 02: designated, if the designation counts as an appointment, which is what we argue. [00:39:56] Speaker 04: And deciding on those grounds wouldn't avoid a constitutional question. [00:40:00] Speaker 04: It would avoid a statutory question about whether officer or official can include employees. [00:40:07] Speaker 04: I mean, it would require us to decide that question. [00:40:11] Speaker 04: But it wouldn't require us to decide an additional constitutional question. [00:40:15] Speaker 02: I think that's right. [00:40:15] Speaker 02: It would make the phrase, it would make it open. [00:40:18] Speaker 02: There would be no constitutional problem with giving the phrase [00:40:22] Speaker 02: officer or official of the United States, its plain meaning, to include officials who are not constitutional officers. [00:40:29] Speaker 02: There would be no appointments clause problem because the appointments clause is satisfied by the secretary's appointment of the convening authority. [00:40:36] Speaker 04: Making that statutory argument doesn't allow us to avoid any additional constitutional questions. [00:40:44] Speaker 02: I think that's right. [00:40:48] Speaker 02: The petitioner's interpretation makes the statute [00:40:52] Speaker 02: potentially unconstitutional in a broad range of applications, even for constitutional officers, because the prior appointment that those constitutional officers have would have to be germane to service as the community authority. [00:41:05] Speaker 02: That's not a problem under our reading because the Secretary of Defense has specifically appointed the community authority to do that job. [00:41:17] Speaker 04: Can I just ask you, could you rely on the de facto officer doctrine here? [00:41:23] Speaker 02: We haven't invoked that claim, your honor. [00:41:27] Speaker 02: And I think the Supreme Court had difficulty with that argument in the Edmonds category of litigation over the military judges. [00:41:39] Speaker 02: And so we haven't invoked it. [00:41:43] Speaker 02: Again, because we've already said this court could consider any argument to [00:41:50] Speaker 02: affirm the CMCR's decision, that may be available, but we haven't made that argument to this point. [00:42:08] Speaker 02: Your Honor, if I could just make one quick point, coming back to the principal officer point and referring to this court's decision related to the copyright judges and the [00:42:19] Speaker 02: decision by the federal circuit, applying that decision to certain patent judges. [00:42:24] Speaker 02: Both this court and the federal circuit decided that any problem could be remedied by invalidating the statutory restrictions on removal. [00:42:38] Speaker 02: And petitioner has said that in the convening authority context, there are no such restrictions on removal. [00:42:43] Speaker 02: And so those cases help our argument [00:42:47] Speaker 02: that the convening authority is an inferior and not a principal officer. [00:42:53] Speaker 02: If I could just very quickly speak to the ex post facto issue. [00:42:59] Speaker 02: The petitioner, to the extent that he has said that it's a question of military law [00:43:09] Speaker 02: that determines whether his claim is jurisdictional or not. [00:43:12] Speaker 02: That just makes it so that class is even less helpful to his claim, because class didn't report to be a discussion of military law. [00:43:20] Speaker 02: And our principle submission is that class is about guilty pleas, and because there wasn't a guilty plea here, it says it doesn't in any way affect this court's en banc determination that constitutional claims could be forfeited in the military commission system. [00:43:36] Speaker 03: Are you going to get to the reassessment of the sentence issue? [00:43:41] Speaker 03: Because where in there do you find evidence that during the reassessment that the beyond a reasonable doubt standard was used? [00:43:48] Speaker 03: I don't see it anywhere. [00:43:49] Speaker 03: It's not cited. [00:43:51] Speaker 03: That's an error, isn't it? [00:43:53] Speaker 02: Wrong standard was used. [00:43:54] Speaker 02: It is cited, Your Honor. [00:43:55] Speaker 02: The case in which that, the sales case from the CAF in which that standard is explained, is cited by the CMCR. [00:44:05] Speaker 02: Now, it's true that it seems I did not use the word reasonable doubt. [00:44:10] Speaker 03: Do you think that's kind of important when we're trying to understand what standard was used if they don't use the language of the standard? [00:44:17] Speaker 02: I think when they cite the proper case and when the court's analysis indicates that it doesn't indicate any doubt about the question, the court determined that the [00:44:30] Speaker 02: conduct underlying the vacated charges was the precise same conduct that underlie the conspiracy count. [00:44:36] Speaker 02: And that makes it so that the reassessing the sentence was proper under any standard. [00:44:41] Speaker 02: And in that circumstance, there's no reason to think that it would be a worthwhile exercise to send it back to them to say the words that they didn't say the first time when they cited the case that contained the proper standard and when they resolved the question not suggesting that there was any doubt about it. [00:45:01] Speaker 02: If there's no further questions. [00:45:04] Speaker 02: Thank you very much. [00:45:04] Speaker 02: Thank you. [00:45:13] Speaker 00: Remember, this is time for rebuttal. [00:45:15] Speaker 00: I will stick to rebuttal, I promise. [00:45:18] Speaker 00: First, because it's an issue, obviously, we're quite familiar with this on forfeiture and waiver. [00:45:24] Speaker 00: This is actually not even just a forfeited issue on their part. [00:45:27] Speaker 00: We specifically flagged [00:45:29] Speaker 00: We anticipated that this argument might be made below in our briefing. [00:45:35] Speaker 00: We filed a supplemental brief, and they specifically did not raise, and they specifically did not... But it's all been briefed now, right? [00:45:41] Speaker 03: I mean, one of the concerns with Forfords are sandbagging. [00:45:44] Speaker 03: That's not the case here, right? [00:45:46] Speaker 00: Well, it's a bit of sandbagging, because we, you know, came up to this court, we had to basically jam all of our responses to this argument in a reply brief that we had, you know, less than we had our initial brief to file. [00:45:56] Speaker 00: And again, this case has had, obviously, plenty of opportunities to look at forfeiture with very thoroughly briefed issues. [00:46:03] Speaker 00: And, you know, if you'll pardon the colloquialism, sauce for the goose is sauce for the gander. [00:46:08] Speaker 00: And if this court is going to apply very strict forfeiture rules against Mr. El-Balool, who is essentially a pro se litigant in this case, I think the government should at least get basic stuff right and raise the issues that it actually wants [00:46:20] Speaker 00: courts to decide. [00:46:21] Speaker 00: And I think to the extent they have argued, they didn't argue it at the podium, but they did argue it in their briefing, that the CMCR has given some sort of specially privileged position because of its experience in military legal issues. [00:46:32] Speaker 00: This argument I think would have had a much different color in front of the CCAs, whereas there's a lot more familiarity with the courts of appeals for the armed forces and the statutes governing those. [00:46:41] Speaker 00: And candidly, I think they didn't raise it below, because it's just not a good argument. [00:46:45] Speaker 03: And one of the reasons, I think, is something that... You say we've been tough on forfeiture with Baloo. [00:46:50] Speaker 03: He didn't participate in the proceeding at all. [00:46:53] Speaker 03: How's that being tough on him to say that plain error review applies? [00:46:59] Speaker 00: He participated somewhat... I'm not going to defend Mr. Albuquerque's conduct at trial. [00:47:03] Speaker 00: That's not what I meant to say. [00:47:04] Speaker 00: But I'm simply saying, you know, sauce for the goose is sauce for the gander. [00:47:07] Speaker 03: But how's it even comparable here? [00:47:10] Speaker 03: Well, a total non-participation yields a certain result. [00:47:15] Speaker 03: And we don't have total non-participation here. [00:47:18] Speaker 00: Miserable did make objections. [00:47:20] Speaker 00: This court just found that those objections were not precisely articulated enough to flag the issue for reviewability purposes. [00:47:27] Speaker 00: We squarely raised the issue below, and they refused to respond to it. [00:47:31] Speaker 00: In fact, they said it's an irrelevant argument entirely. [00:47:34] Speaker 00: So I do think, just again, with a pro se litigant and experienced government counsel, I think that's a big difference. [00:47:40] Speaker 00: But I would actually make one point that I think my friend raised, which I think really does cut against this whole Susan Crawford is a principal officer on CAF. [00:47:48] Speaker 00: CAF is not actually part of the Department of Defense. [00:47:50] Speaker 00: There's actually a specific statute saying, for convenience, the statutes governing it are put in Title X. But like the tax court, like a lot of other independent agencies or Article I tribunals, it's a freestanding entity in the executive branch. [00:48:03] Speaker 00: And so his germane in this argument that, oh, well, we're going to be pulling people from the Department of Agriculture, if you agree with my argument, [00:48:10] Speaker 00: That's arguably what they would have had to have done here in order to put Susan Crawford onto the court. [00:48:16] Speaker 00: If I can address their sort of core Appointments Clause argument, at least as they frame it, is that we should redesignate as a point. [00:48:24] Speaker 00: Don't read the statute as it's written. [00:48:26] Speaker 00: Read it as we would like it to be written. [00:48:29] Speaker 00: And can I just give this court four examples, with this court's indulgence, give this court four examples, [00:48:34] Speaker 00: where identical language, often done with the identical grammar, has not been interpreted that way. [00:48:40] Speaker 00: First was with the International Security and Development Cooperation Act. [00:48:43] Speaker 00: The Office of Legal Counsel squarely looked at a statute that gave the President certain powers and the power to designate that to any office or agency and said the President does not have the power because of the Appointments Clause with a statute that simply gives the power to designate. [00:48:57] Speaker 00: the power to actually create an office and to appoint individuals into an office. [00:49:02] Speaker 00: Edmund versus the United States, Article 66 of the UCMJ uses both the word assign and also designate for senior chief judge of the Court of Appeals for the Armed Forces. [00:49:12] Speaker 00: The Supreme Court said, we can't rely on that as an appointment statute. [00:49:15] Speaker 00: Instead, they had to look at 49 USC 323, which is the enabling act for the Secretary of Transportation, as an appointment authority, a separate appointment authority. [00:49:24] Speaker 00: The United States versus Nagoya, that's 28 USC 292, which is the sitting by designation statute. [00:49:31] Speaker 00: That language is virtually identical grammatically in terms of to section 948H. [00:49:38] Speaker 00: And no one suggested in Nagoya that the power of the chief judge of a circuit to designate a district judge constituted or should be read to constitute an appointment. [00:49:48] Speaker 00: And if they did, that would have resolved the case very simply and concisely. [00:49:51] Speaker 00: Instead, the Supreme Court said no statutory terms mean what they mean. [00:49:54] Speaker 00: Designate means an existing officer or official in that case. [00:49:59] Speaker 00: Go ahead. [00:50:00] Speaker 00: I'm sorry. [00:50:01] Speaker 00: And then lastly, actually, Lucia itself. [00:50:03] Speaker 00: You know, Lucia is a broad, it depends on a fairly broad delegation provision of the Securities and Exchange Act, but how that's operationalized in 15 CFR 2001-110 is to designate hearing officers. [00:50:15] Speaker 00: And the Securities and Exchange Commission designated hearing officers in the same way the Secretary of Defense designated a convening authority. [00:50:22] Speaker 00: And no one at the time here, and no one at the time in Lucia. [00:50:25] Speaker 00: thought anyone was getting an appointment to anything. [00:50:27] Speaker 00: If I can resist my friend's argument, and I think he's frankly just wrong on this, that if you accept their argument that this is a creation of an office, that designate means to create an office. [00:50:38] Speaker 00: Well, that's a judicial office. [00:50:39] Speaker 00: That's by statute. [00:50:42] Speaker 00: And under United States versus Wiener, that means because of judicial office, [00:50:46] Speaker 00: in the Article 1 context that it's automatically given good cause tenure. [00:50:52] Speaker 00: And so the Secretary of Defense does not have the automatic ability to remove a convening authority at will and hasn't exercised that authority. [00:51:01] Speaker 00: Again, a lot of what the government [00:51:04] Speaker 00: has argued on a number of these issues, frankly, is to say, well, just impute a little bit here, shade the language here, give us a little bit of an edge or a sort of ambiguity in our favor here. [00:51:17] Speaker 00: And we're dealing with a case where this man is serving life without parole in solitary confinement. [00:51:24] Speaker 00: And if that's what this court is being asked to approve, I don't think it's a lot to ask that the government just get the very basic things right. [00:51:32] Speaker 00: And reversing on the Appointments Clause ground, which we think is the most straightforward, does not set him free. [00:51:37] Speaker 00: It literally moves him from Camp 5 to Camp 6 with the other low-value detainees. [00:51:41] Speaker 00: And if the government wants to prosecute him and prosecute him properly in a military commission, they can do so. [00:51:46] Speaker 01: Let me go at it. [00:51:47] Speaker 01: One more thought. [00:51:49] Speaker 01: I'm not sure I understand the reach of your argument, looking at the statutory language. [00:51:57] Speaker 01: The Secretary has authority. [00:52:01] Speaker 01: to appoint inferior officers, right? [00:52:04] Speaker 00: No, the Secretary of Defense does not. [00:52:06] Speaker 00: That's been a very jealously withheld authority. [00:52:08] Speaker 00: Congress has never, maybe with the exception of a brief period in the 1960s, never given the Secretary of Defense any general appointment power. [00:52:17] Speaker 00: There are only 16 provisions in all of Title X, and we're happy to provide those to the court in the 28-J letter. [00:52:22] Speaker 00: We looked. [00:52:24] Speaker 00: And there are only 16 provisions in Title X where the Secretary has given any appointment authority at all. [00:52:30] Speaker 00: Nine of them are to various advisory boards, and the seven others are to things that are just not germane to this case. [00:52:38] Speaker 00: And so, to Your Honor's question, I would actually point this court specifically to the Court of Appeals of the Armed Forces decision in Janssen. [00:52:47] Speaker 00: We cite it in our brief and in our reply brief. [00:52:50] Speaker 00: They look at this Appointments Clause issue in the Title X context. [00:52:53] Speaker 00: very, very carefully. [00:52:55] Speaker 00: And I candidly think that's one of the reasons why they were not quick to try and pull out this, you know, senior judges or perpetual officers argument below. [00:53:03] Speaker 00: Because that's something that in the military context people are very, very familiar with. [00:53:06] Speaker 00: And they lay out, again, the structure of Title X, how carefully it's articulated, even the number of majors. [00:53:13] Speaker 04: Well, the fact that the secretary doesn't have a general appointment authority, I mean, that seems to be correct under the statute, but the real question here is whether the MCA gives him that [00:53:21] Speaker 04: authority to appoint someone in this context, right? [00:53:25] Speaker 00: Absolutely. [00:53:25] Speaker 04: Obviously, you disagree about that, but that's the question here. [00:53:29] Speaker 00: That's correct, and we would point to the OLC's opinion on the International Development and Security Assistance, Security Cooperation Act, to Edmund. [00:53:36] Speaker 00: I think Edmund is probably our best case. [00:53:38] Speaker 00: This court's decision last year in January sealed kicks as well. [00:53:42] Speaker 00: You've got to have a statute that says a point. [00:53:45] Speaker 00: This is not being formalistic or abstract. [00:53:47] Speaker 00: The Supreme Court has said in this context, words matter, because [00:53:50] Speaker 00: The delegation of appointment authority from Congress to a department head is a significant separation of powers problem. [00:53:57] Speaker 00: Congress is withholding its power to review executive appointments. [00:54:00] Speaker 00: That's a significant problem, or at least a significant concern when it comes to the accountability of executive officials who are exercising significant powers on behalf of the government as the convening authority did here. [00:54:13] Speaker 00: Thank you. [00:54:13] Speaker 00: Thank you very much. [00:54:15] Speaker 00: The case is submitted.