Wells blogged previously about the efforts of various media groups and the ACLU to seek mandamus review before the Court of Military Commission Review (CMCR), challenging the scope of the protective order (which covers, among other things, the 9/11 trial) to the extent it bars press and public access to the proceedings even where there hasn't been an individualized judicial determination of a need to keep certain information (e.g., the defendants' own statements) classified.
Those petitions have now been denied by the CMCR, in short orders available here (media motion) and here (ACLU motion), basically concluding that these disputes aren't yet ripe. [There are also separate orders denying intervention to the defendants here (media) and here (ACLU).]
I hope to have more to say on the merits of the media/public access issue soon, but I wanted to briefly flag Judge Silliman's interesting concurrence to both the media and ACLU orders, where he argues that the (remaining) jurisdiction-stripping provision of the Military Commissions Act, 28 U.S.C. § 2241(e)(2), bars the CMCR from even entertaining petitions for writs of mandamus under the All Writs Act, 28 U.S.C. § 1651. As I (briefly) explain below the fold, I don't think Judge Silliman's intriguing opinion (which seizes on an argument not even the government has made) is ultimately convincing--which should also mean that there's no jurisdictional defect in an immediate appeal of these orders on their merits to the D.C. Circuit.
At the heart of Judge Silliman's opinion is the proviso in the MCA that
no court, justice, or judge shall have jurisdiction to hear or consider 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, Judge Silliman argues, the petition for a writ of mandamus filed by the media groups and the ACLU is "any other action," since jurisdiction is predicated on the All Writs Act, and so it is barred by the MCA.
The problem with this reasoning is that it fundamentally misunderstands the relationship between mandamus and the All Writs Act. The Supreme Court has consistently held that the All Writs Act "does not confer jurisdiction on the federal courts." (emphais added). Rather, it empowers courts that already have jurisdiction to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Thus, mandamus is only appropriate in cases like these (where it is sought to confine a lower court to the lawful exercise of its jurisdiction) where it is in aid of the appellate court's appellate jurisdiction.
And the CMCR's appellate jurisdiction over military commissions is provided by--you guessed it--the Military Commissions Act, which both creates the CMCR and invests it with direct appellate jurisdiction over the military commissions. Thus, so long as a writ of mandamus along the lines sought by the media groups and the ACLU is "in aid of" the CMCR's post-conviction appellate jurisdiction, then it seems like there are two pretty compelling counterarguments to Judge Silliman's reasoning: (1) such relief is not "any other action" for purposes of the MCA's jurisdiction-stripping provision; and (2) even if it is, one should resort to the "whole act" rule of statutory interpretation to that provision--and read it to not foreclose a species of the appellate jurisdiction that the very same statute creates. [Indeed, one could also argue that the 2009 MCA, which re-enacts the CMCR's appellate jurisdiction with some minor changes, supersedes the 2006 MCA, which enacted the jurisdiction-stripping provision.]
Don't get me wrong--these petitions present hard questions on the merits about public rights of access to judicial proceedings balanced with the government's interest in preserving the secrecy of national security information. My only point is that, contra Judge Silliman, it's on the merits that these cases should be resolved. At the very least, perhaps briefing and argument on the jurisdictional issue was warranted...