As the recent decisions by the Court of Military Commission Review (CMCR) in the Guantánamo military commission ACLU/media access cases suggests, there are a host of complicated and heretofore unresolved questions about the scope of appellate and collateral review of military commission trial court decisions. In the following post (and below the fold), I aim to provide a brief overview of (1) the largely underappreciated evolution of appellate and collateral review from the Military Commissions Act of 2006 to the Military Commissions Act of 2009; (2) the big questions that have not yet been answered about the scope of such review today; and (3) my own take on the correct answers to these questions.
I. Post-Conviction and Collateral Review Under the DTA and 2006 MCA
[Note: This section is largely derived from a forthcoming book chapter, titled Exceptional Courts and the Structure of Military Justice.]
Prior to the Detainee Treatment Act of 2005 (DTA), there was no statutory provision for any judicial review of military commissions. Instead, review was available only collaterally, e.g., via habeas corpus (as in the Hamdan case). In the DTA, enacted one month after the Court decided to hear Hamdan (and largely in response thereto), Congress expressly provided for the first time for statutory appeals from military commissions in at least some circumstances.
In particular, section 1005(e)(3) of the DTA authorized appeals to the D.C. Circuit “to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order),” and made the appeal as of right “with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more.” The Act also circumscribed the scope of the D.C. Circuit’s post-conviction review, limiting it to
(i) whether the final decision was consistent with the standards and procedures specified in the [August 31, 2005] military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.
Although the DTA provided for a similar appeal from a final decision of a Combatant Status Review Tribunal, it otherwise purported to preclude all judicial review of claims arising out of Guantánamo, a provision that the Supreme Court in Hamdan held to be inapplicable to “pending cases,” and that the Court in Boumediene would strike down as applied to the Guantánamo detainees when re-enacted in the Military Commissions Act of 2006 (MCA).
Had the DTA’s jurisdiction-stripping provision ever actually applied to funnel all of a commission defendant’s claims into a post-conviction appeal, it would have presented a series of difficult questions as to the scope of review on such an appeal. In addition to the limited scope of review quoted above, the DTA only allowed appeals as of right by individuals sentenced to at least 10 years’ imprisonment (Hamdan’s ultimate sentence was only 66 months). Moreover, the statute confined review even in those cases to challenges to the August 31, 2005 military order (and subsequent directives), and not to the earlier orders (1) establishing the commissions; (2) defining their jurisdiction; or (3) delineating the offenses that could be tried. Even then, as the quoted passage above suggests, one could hardly describe the scope of review as de novo. And, in addition, although the DTA authorized a statutory appeal to the D.C. Circuit, it said nothing about whether the Supreme Court could, in turn, exercise certiorari jurisdiction. Because of Hamdan, however, no appeals of convictions were ever taken under the original section 1005(e)(3).
After Hamdan, Congress enacted a modified version of the same scheme in the Military Commissions Act of 2006, emphasizing that it did apply to pending cases; creating an intermediate appellate court—the “Court of Military Commission Review” (CMCR); making all appeals to both the newly created CMCR and the D.C. Circuit as of right; and cleaning up a couple of the textual flaws in the appellate review that had come to light during the Hamdan litigation.
And while, as noted above, the Supreme Court in Boumediene invalidated the habeas jurisdiction-stripping provision of the MCA as applied to the Guantánamo detainees, the decision both explicitly and logically left the post-conviction review scheme wholly intact.
What Boumediene did not address was the 2006 MCA’s other two jurisdiction-stripping provisions. One, now codified at 28 U.S.C. § 2241(e)(2), applies to “any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant.” In al-Zahrani v. Rodriguez, the D.C. Circuit held that this provision validly divests the federal courts of jurisdiction over damages suits by Guantánamo detainees—without regard to whether it applies to any challenges to military commissions. (For discussion of al-Zahrani, see here and here.) The other provision, which was initially codified at 10 U.S.C. § 950j(b), was more explicit on that point:
Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.
Added together, then, the DTA and the 2006 MCA produced the following scheme for appeals and collateral review in the context of military commissions: the government—but not the defendant, as the D.C. Circuit confirmed in the Khadr case—could take interlocutory appeals at various stages during the pre-trial and trial proceedings; the defendant could appeal a conviction (once approved by the Convening Authority) as of right to the CMCR, which “may act only with respect to matters of law.” From there, an appeal would lie to the D.C. Circuit, which, as under the DTA, could consider “(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and (2) to the extent applicable, the Constitution and the laws of the United States.” Finally, the Supreme Court could exercise certiorari jurisdiction “pursuant to section 1257 of title 28” (the provision governing appeals from state courts). But thanks to § 950j(b), such direct appeals appeared to be the only way a defendant could ever challenge rulings by a military commission.
II. Post-Conviction and Collateral Review Under the 2009 MCA
Without anyone noticing, the Military Commissions Act of 2009 made a series of (in my view, positive) revisions to the structure of appellate and collateral review of military commissions.
First, the 2009 MCA dramatically expanded the scope of the CMCR’s appellate jurisdiction over a military commission trial court, providing that:
The Court may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the military commission saw and heard the witnesses.
Second, the 2009 MCA expanded the scope of the D.C. Circuit’s review on appeal from the CMCR to encompass all “matters of law, including the sufficiency of the evidence to support the verdict.” Third, the 2009 MCA clarified that the Supreme Court’s jurisdiction, were it to be invoked, would be analogous to its review of federal courts under 28 U.S.C. § 1254, rather than the state-court provision (28 U.S.C. § 1257) cited in the 2006 MCA.
Finally, and most importantly, the 2009 MCA repealed 10 U.S.C. § 950j(b) without comment–leaving only the more general jurisdiction-stripping provision from the 2006 MCA, 28 U.S.C. § 2241(e)(2), intact.
The net effect of the 2009 amendments was to produce a structure that closely (and intentionally) mirrors the current structure for direct and collateral review of courts-martial. As of today, the scope of the CMCR’s post-conviction review is a word-for-word copy of the scope of the service branch courts of criminal appeals’ authority under Article 66 of the Uniform Code of Military Justice (UCMJ), and the D.C. Circuit’s power is as broad as the authority that Article 67 gives to the Court of Appeals for the Armed Forces (CAAF)—if not broader. Moreover, unlike CAAF, the D.C. Circuit can’t decline to review an appeal from the CMCR, which also means that there are no such appeals that fall outside the scope of the Supreme Court’s certiorari jurisdiction. In short, then, the appellate review provided by the present-day MCA is no narrower—and in some cases, significantly broader—than the review available to those convicted under the current court-martial system.
III. The Open Questions: Interlocutory and Collateral Review
As the above discussion suggests, most of the statutory movement has been to expand the scope of post-conviction review and to remove prior restrictions on collateral review. That leaves open two important questions that are starting to emerge, as, for example, in the ACLU/media access cases:
- Are there any circumstances in which defendants or third parties may pursue an immediate appeal of interlocutory trial court decisions?
- Are there any circumstances in which collateral review of the commissions will now be available?
Taking the first question first, there is no statutory basis for an express interlocutory appeal by a defendant or a third party. That was the crux of the D.C. Circuit’s holding in Khadr. Instead, the question reduces to whether individuals may pursue mandamus relief under the All Writs Act, 28 U.S.C. § 1651. As the Supreme Court has long explained, “The traditional use of the writ [of mandamus] in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Mandamus is not technically an appeal, but a separate, collateral action. At the same time, as I explained in a prior post, the All Writs Act does not confer jurisdiction; it merely empowers courts to issue those writs that are necessary to effectuate their jurisdiction–including the power of appellate courts to issue writs to protect their current or future appellate authority. In ordinary civil cases, then, it is settled that the power of a circuit court to issue a writ of mandamus to review an interlocutory trial court decision derives from its power to review final judgments of the district court. The same should arguably follow for the CMCR and the D.C. Circuit in the context of commissions…
Notwithstanding these authorities, Judge Silliman’s concurrence in the ACLU/media access cases argued that mandamus is unavailable in the commission process. Although the government hadn’t so argued in the ACLU/media access cases, it has argued against mandamus in another commission case–In re al-Hawsawi–in an argument largely embraced by Judge Silliman (see pp. 10-13 of the government’s brief). In short, as I described in my previous analysis of Judge Silliman’s concurrence, the claim is that 28 U.S.C. § 2241(e)(2) (the MCA’s general jurisdiction-stripping provision) does all of the relevant work in divesting the courts of jurisdiction over “any other action,” and therefore divests the CMCR and/or the D.C. Circuit of the power to issue a writ of mandamus.
I already outlined the two most obvious textual reasons why, in my view, this argument fails to persuade: (1) mandamus is not “any other action” when it’s in aid of appellate jurisdiction; and (2) in any event, the scope of the jurisdiction-stripping provision should be understood by reference to the appellate jurisdiction created and conferred by the very same statute. This broader overview, though, also helps to underscore two additional points: First, if, as I suggested above, the purpose of the 2009 MCA was to align appellate review of the commissions with that available in courts-martial, it is well-settled that mandamus and other extraordinary writs are available within the court-martial system in appropriate cases.
Second, and more fundamentally, there’s is the constitutional avoidance canon, and the Supreme Court’s repeated allusion to the “‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” In the commission context, there are certainly some constitutional claims that can only be vindicated by defendants prior to their trial (including their right not to be subjected to a military trial in the first place). But leaving that aside, it should be obvious that, if the ACLU and media organizations have First Amendment rights to vindicate before the commissions, those rights could not be vindicated in any judicial forum at any time under the government’s (and Judge Silliman’s) reading of 28 U.S.C. § 2241(e)(2). [To be clear, it is settled that Richmond Newspapers and its progeny apply to courts-martial, so the question becomes why commissions would be different.]
Those same constitutional concerns are only more relevant to the availability of collateral review of the commissions. (Although mandamus is often described as a “collateral” proceeding, I think it makes more sense to discuss it as part of appellate jurisdiction when it is sought for the purpose of reviewing a lower court.)
I’ve written before at some length about why, in my view, 10 U.S.C. § 950j(b) would have been unconstitutional had it ever been applied to deprive a military commission defendant of access to habeas for any claim that couldn’t be effectively adjudicated on post-conviction appeal. (A pair of 2008 district court decisions in Hamdan and Khadr sidestepped this argument in favor of abstention doctrine, holding that Hamdan’s and Khadr’s arguments should be deferred to any potential post-conviction appeal.)
The 2009 repeal of that provision presumably reopens the door to such collateral review, especially since those came constitutional concerns would resurface if the government’s reading of 28 U.S.C. § 2241(e)(2) were also applied to suits for collateral review of the commissions.
At the same time, even if the 2009 MCA reopened the door to collateral review of military commissions, it likely minimized the need for such review insofar as it expanded the scope of the CMCR’s and D.C. Circuit’s direct review on post-conviction appeal. It remains to be seen, of course, whether there might be individual claims that defendants cannot meaningfully adjudicate on post-conviction appeal. After all, thus far, the only two post-conviction appeals to reach the D.C. Circuit have both been decided in the defendants’ favor. But if there are such claims, it seems fairly clear that habeas will have to be available in the Article III courts.
Thus, the trickiest question of appellate jurisdiction in the commissions appears to be the one raised by the ACLU/media access cases. And although there is some logic to the reading of 28 U.S.C. § 2241(e)(2) advanced by the government in al-Hawsawi and adopted by Judge Silliman in the ACLU/media access appeals, that logic comes from reading that provision in a vacuum. When considered as part of the far broader context of appellate and collateral review of the commissions, it becomes clear that there are compelling statutory and constitutional reasons why the CMCR–and the D.C. Circuit, on appeal–should have the power to entertain petitions for writs of mandamus in appropriate cases.