This morning, a three-judge D.C. Circuit panel unanimously rejected a mandamus petition by Guantánamo military commission defendant Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri, who had sought to challenge, on constitutional grounds, the means by which military judges were assigned to the Court of Military Commission Review (the intermediate military appellate court that had been set to entertain the government's interlocutory appeal of the trial judge's dismissal of some of the charges against al-Nashiri). As I wrote back in February in a post titled "The Critical Difference in How Al-Nashiri Loses," "the real question to emerge from the argument [was] whether the court will dismiss al-Nashiri's petition for lack of jurisdiction, or deny it on the 'merits'-based ground that such extraordinary relief simply isn't necessary at this stage, leaving these claims for a potential future post-conviction appeal." Not only did the Court of Appeals take the latter course (which thereby sustains the D.C. Circuit's mandamus jurisdiction over the commissions in appropriate future cases), but Judge Henderson's opinion for the panel goes even further, suggesting to Congress and the President that they revisit the means by which military judges are appointed to the CMCR in order to moot al-Nashiri's constitutional objections. Simply put, al-Nashiri may have lost this round, but in the process, he (and other current and future commission defendants) may well have won for losing.
I. The Background and Ruling
To make a long story short, this case came to the D.C. Circuit after the trial judge threw out the charges against al-Nashiri relating to his alleged role in the bombing of the M/V Limburg (on the merits of the Limburg charges, see Marty Lederman's Just Security post here). The government took an interlocutory appeal to the CMCR, at which point al-Nashiri objected to the composition of that court on both Appointments Clause and Commander-in-Chief Clause grounds (for much more on the merits of those objections, see my preview of the D.C. Circuit argument). The CMCR rejected al-Nashiri's objections, at which point al-Nashiri sought mandamus relief from the D.C. Circuit. Over a dissent by Judge Kavanaugh (the merits of which I discussed and criticized here), the D.C. Circuit then entered an administrative stay pending resolution of al-Nashiri's mandamus petition. That resolution came in this morning's opinion.
Writing for a unanimous panel (Henderson, Rogers, & Pillard, JJ.), Judge Henderson first held, contra the government's argument (and Judge Kavanaugh's earlier dissent), that the Court of Appeals does have jurisdiction to issue writs of mandamus to the CMCR (and, through them, the military commissions) in appropriate cases. First, she explained, the Military Commissions Act (MCA) "gives this Court 'exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission.' Accordingly, we can issue a writ of mandamus now to protect the exercise of our appellate jurisdiction later." And second, that jurisdiction was not divested by the MCA's non-habeas jurisdiction-stripping provision, 28 U.S.C. § 2241(e)(2), because "the text of section 2241(e)(2) bears little resemblance to statutes that expressly strip mandamus jurisdiction." Given my views on the relationship between the All Writs Act and military courts, this analysis of mandamus jurisdiction strikes me as entirely correct (and, if anything, undersold). And as I explain below, this may be the far more important holding in al-Nashiri than what follows.
Turning to the merits of al-Nashiri's mandamus claim, Judge Henderson rejected his entitlement to mandamus on two of the three prongs required by circuit precedent for such extraordinary relief:
First, Judge Henderson concluded that al-Nashiri has adequate means of pursuing his claims through other avenues--in his case, through a post-conviction appeal. It's certainly true that nothing would prevent al-Nashiri from challenging the composition of the CMCR on a post-conviction appeal (assuming he loses in the CMCR on the merits of the government's interlocutory appeal, or else there'd be nothing to challenge). But I must confess to not being wholly convinced by Judge Henderson's analysis. For starters, if al-Nashiri's constitutional challenge is meritorious, then it seems to me that the CMCR would lack jurisdiction over the government's interlocutory appeal, a defect that is often subject to remediation through mandamus (one of the core purposes of which is to confine lower courts to the proper exericse of their jurisdiction). I also think Judge Henderson gives short-shrift to al-Nashiri's claim that, uniquely in the military context, the commingling of capital charges at sentencing (which doesn't happen in civilian courts) creates the possibility of irreparable harm if some--but not all--of the charges are subsequently thrown out on appeal, since it won't necessarily be clear whether the members would have voted for a capital sentence if only some of the conviction stands. (Judge Henderson rejects this argument by relying upon what--to me, at least--are inapposite precedents from civilian capital cases.) I still think al-Nashiri should lose on this prong, but not because a post-conviction appeal is an adequate remedy. Rather, in my view, mandamus jurisdiction would be justified once the (arguably unconstitutionally constituted) CMCR rules for the government on the merits of its interlocutory appeal. It's only at that point, after all, that al-Nashiri would be injured by the CMCR's flawed small-c constitution--and after which the absence of a remedy could have the effect described above.
Judge Henderson's second argument against mandamus--that al-Nashiri's claim to relief is not "clear and indisputable"--strikes me as far stronger, so much so that I wish the Court of Appeals would simply have relied upon this line of reasoning to the exclusion of the first. In the end, though, it doesn't affect the result, since al-Nashiri would still lose either way. In a nutshell, as we predicted, the court concluded that al-Nashiri's Appointments Clause challenge raises a series of important--but, as relevant for present purposes, novel--questions:
Are CMCR military judges principal or inferior officers? If they are principal officers, does their initial appointment to be commissioned military officers satisfy the Appointments Clause? Likewise, what role, if any, does “germaneness” play in the constitutional analysis? Does the Appointments Clause require germaneness for inferior-toinferior assignments? If not, would germaneness nonetheless cure any Appointments Clause question with an inferior-toprincipal assignment? Are the duties of a CMCR military judge germane to the duties of a commissioned military officer? These are but a few of the questions we would confront if we followed Nashiri down the rabbit hole.
Whatever the answers to these questions, it can hardly be said that al-Nashiri's claim to relief is "clear and indisputable" given that they're all questions of first impression. Thus, it strikes me as right on the money that mandamus isn't appropriate on this second prong. But that's why I was so surprised by the closing stanza of Judge Henderson's opinion, which came after summarizing why the Court of Appeals was denying al-Nashiri's application:
There may be another reason to pump our judicial brakes. Once this opinion issues, the President and the Senate could decide to put to rest any Appointments Clause questions regarding the CMCR’s military judges. They could do so by re-nominating and re-confirming the military judges to be CMCR judges. Taking these steps—whether or not they are constitutionally required—would answer any Appointments Clause challenge to the CMCR.
In other words, al-Nashiri's Appointments Clause challenge to the role of military judges on the CMCR is serious enough, in the D.C. Circuit's view, that perhaps the political branches should figure out a way to make it go away before the issue comes back in a post-conviction appeal. I certainly don't disagree (as my earlier post indicates), but I'm nevertheless more than a little surprised to see the Court of Appeals send such a warning shot across the government's bow. Of course, whether the government listens is another question altogether...
Unless al-Nashiri pursues rehearing en banc or certiorari (the odds of which I'd put at zero and zilch, respectively), this case now goes back to the CMCR, which will be tasked with resolving, on the merits, the government's interlocutory appeal of the dismissal of the Limburg-related charges. Of course, the CMCR could also revisit the Appointments Clause issue on its own, but I wouldn't hold my breath waiting for that to happen. Once the Limburg-related charges are sorted out, presumably the case goes back to the military commission for remaining pre-trial proceedings. In other words, this surely won't be the last we hear of al-Nashiri.
More importantly, though, the D.C. Circuit's ruling also vindicates an argument I've been making for some time about mandamus jurisdiction vis-a-vis the commissions, and thereby opens the door for any number of potential pre-trial challenges to the commissions going forward--at least in cases in which the commission defendant has a colorable argument that a post-conviction appeal would be an inadequate remedy. Thus, the real impact of today's decision may be in bringing the D.C. Circuit into more direct, and more frequent, contact with the military commissions' pre-trial rulings and procedures. From the perspective of the legitimacy of the commissions, that can only be a good thing. From the perspective of their speed and efficiency, well... not so much.