Last Friday's D.C. Circuit ruling in the Khadr case provides yet another striking illustration of how misbegotten an experiment the Court of Military Commission Review has turned out to be. As this post explains, not only does the CMCR suffer from inherent structural flaws that the political branches seem uninterested in fixing, but its substantive role in the military commission process has turned out to be not only woefully inefficient, but affirmatively counter-productive from both the government's and the defendants' perspectives. Simply put, the CMCR has become an object lesson in how not to create new non-Article III federal courts — and an expensive one, at that.
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The D.C. Circuit's ruling rejecting a mandamus petition by Guantánamo military commission defendant Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri, not only sustained the D.C. Circuit's mandamus jurisdiction over the commissions in appropriate future cases, but was also at pains to suggest to Congress and the President that they revisit the means by which military judges are appointed to the intermediate Court of Military Commisison Review in order to moot al-Nashiri's serious constitutional objections under the Appointments Clause.
In part, the majority and dissenting opinions in al Bahlul v. United States reflect two different methodological approaches to the central question, formal or functional. But al Bahlul doesn't simply turn on whether one applies one or the other approach. So even as the majority correctly resorted to formalism in resolving al Bahlul's Article III challenge to his conspiracy conviction, properly applied, the Supreme Court's more functional approach ought to have produced the same result.
Both Judge Henderson's dissent in al Bahlul and Peter Margulies's post criticizing the al Bahlul majority assume that courts should take a functional approach to the permissible scope of the jurisdiction of non-Article III military courts--and therefore balance a series of prudential factors in determining when military courts should be allowed to try offenses or offenders not previously subject to military jurisdiction. In this post, I explain why, at a fundamental level, formalism, and not functionalism, is the appropriate analytical mode--and, therefore, why both Judge Henderson's dissent and Peter's critique miss the mark. If anything, the biggest flaw in Judge Rogers' majority opinion is its failure to do more to explain why a formalistic approach is called for in this context. This post aims to fill that gap.