Justices Hear Military Cases with Possible Gitmo Repercussions

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By Melissa Heelan Stanzione

Both sides in three consolidated cases about a Civil War-era law that prohibits active duty military officers from serving in civilian government positions asked the U.S. Supreme Court to reach the merits of the arguments Jan. 16.

Almost all of the cases pending from the detention center in Guantanamo Bay—including the case against September 11th conspirators—have been affected by the issues the case raises, a military law scholar told Bloomberg Law in September.

A decision on the merits could affect which judges can sit on the U.S. Court of Military Commission Review, which hears appeals from the military commissions in Guantanamo, which are solely used to try Guantanamo detainees.

The petitioners—service members convicted of various offenses—contend that a judge who affirmed their criminal convictions as a member of a U.S. Court of Criminal Appeals panel should be disqualified because he was sitting on the USCMCR at the same time.

Justice Ruth Bader Ginsburg said their proposed solution—that such dual service should result in being ousted from the military—would be “draconian.”

But first the court had to contend with whether it could hear the case at all. The service members argued there is jurisdiction to hear the cases and the government conceded there is jurisdiction for the high court to hear at least one of the cases.

Professor’s Rare Chance

A professor who was given a rare grant to argue on whether the court can hear the cases said the Supreme Court lacks jurisdiction to hear the cases, which means it wouldn’t have to reach a decision on the merits.

The lower court in these cases—the U.S. Court of Appeal for the Armed Forces—is an executive branch entity, Aditya Bamzai of the University of Virginia School of Law, Charlottesville, Va., who argued as an amicus curiae in support of neither side said.

The Supreme Court held in Marbury v. Madison that it can’t exercise Article III appellate jurisdiction over the executive branch, Bamzai said.

He concurred with Justice Anthony M. Kennedy’s suggestion during oral argument that the constitutional problem could be fixed if Congress made the CAAF an Article III court.

Both sides focused on other issues during arguments.

They asked the court to reach the merits of the case, especially on the issue of whether judges who simultaneously served on the Court of Criminal Appeals and the U.S. Court of Military Commissions Review violate an 1870 federal ban on military officers holding a civil office.

Military or Civil

A civil office is a non-military office in the government that exercises the powers of the civil government, Brian H. Fletcher of the Department of Justice said.

“Judged by that criterion, a judgeship on the Court of Military Commission Review is a military office,” not a civil office that would trigger the ban, Fletcher said.

It judges violations of the law of war and other functions that military officers “have long performed,” he said.

It was also “expressly patterned” on the military courts of criminal appeals, Fletcher said.

Military officers serving on the CCA perform military functions and “are doing something that is germane to their military duties,” he said.

This remains true when those officers perform “essentially the same function” in the USCMCR, Fletcher said.

But the government must comply with the 1870 statute banning simultaneous service, Fletcher said, and if the Supreme Court disagrees with its argument, “obviously the government is going to have to fix that problem.”

Undue Influence?

The problem, the petitioners argued, is that serving on the USCMCR triggered the statute’s dual-officeholding ban, requiring those judges’ termination from the military and disqualifying them from hearing their appeals.

The USCMCR was modeled on the courts of criminal appeals but is a civil office, Stephen I. Vladeck argued for the petitioners. Vladeck is a professor of federal jurisdiction and national security law at the University of Texas at Austin Law School.

The tribunal doesn’t exercise a “classic military function” as the government alleges, Vladeck said.

The principal judicial review of USCMCR decision is done by civilian judges through habeas corpus or on direct appeal in the court-martial system, he said.

There’s also separation of powers concerns, Vladeck said.

You have “the specter of an officer who is a principal officer over here on one court and an inferior officer over here on another court serving with similar staffs, interacting with similar officers in the appellate counsel’s office, for example, in both the government—the prosecution and defense side,” he said.

But what’s the big deal? Chief Justice John G. Roberts Jr. asked.

What’s the problem with “being a principal officer in one context and an inferior officer in the other?” Roberts said.

There’s a “very real possibility” of undue influence, Vladeck said.

Ginsburg left the courtroom for about five minutes toward the end of the argument for unknown reasons. It’s unusual for justices to leave the bench during arguments.

The cases are Dalmazzi v. United States, U.S., No. 16-961, argued 1/16/18 , Cox v. United States, U.S., No. 16-1017, argued 1/16/18 , and Ortiz v. United States, U.S., No. 16-1423, argued 1/16/18 .

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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