SCOTUS Review of Military Judge Challenge Will Have Gitmo Ripples

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By Melissa Heelan Stanzione

The U.S. Supreme Court decided Sept. 28 to hear three cases about a Civil War-era law that prohibits active duty military officers from serving in civilian government positions ( Dalmazzi v. United States, U.S., No. 16-961, review granted 9/28/17 , Cox v. United States, U.S., No. 16-1017, review granted 9/28/17 , and Ortiz v. United States, U.S., No. 16-1423, review granted 9/28/17 ).

The matter before the justices asks whether a presidential appointment to the U.S. Court of Military Commissions Review effectively strips those judges of their armed forces status.

Here, the plaintiffs contend that a judge who affirmed their criminal convictions as a member of an Air Force appeals court should be disqualified because he was sitting on the military commissions review panel at the same time.

The outcome of the Supreme Court review “affects a lot of cases in the court-martial system as well as the military commission system in Guantanamo,” a military law scholar told Bloomberg BNA in reference to the U.S. detention facility at Guantanamo Bay, Cuba, where some terror suspects are held.

The issue in question centers around an 1870 statute that prohibits military officers from holding a civilian office in the government that would require election to the post or a presidential appointment.

The law was passed to ensure that military officers didn’t serve in the government following the Civil War, said Michel Paradis of Columbia Law School, New York. The lines between civilian and military spheres of government “had blurred” during that war, and the law aimed to “reestablish” them, Stephen I. Vladeck, told Bloomberg BNA in an email. Vladeck is a law professor at the University of Texas at Austin and represents the petitioners.

No Generals In Government

It draws “a sharp line between government positions subject to the military’s chain of command and those subject to the civilian chain of command,” Paradis said.

The law meant that even General William Tecumseh Sherman, a war hero, couldn’t serve as secretary of war, the equivalent to today’s secretary of defense, he said.

Put into context today, the law is the reason why Marine Gen. John Kelly had to retire before he could become homeland security secretary under President Donald Trump, Vladeck said. Kelly is now White House chief of staff.

Whatever a person thinks about the having military officers serving on the Article I appeals court for the Guantanamo military commissions, “the justification for that practice could have massive ramifications for the separation of the civilian and military spheres of our government,” Vladeck told Bloomberg BNA in an email.


The eight petitioners in the three cases are service members convicted of various crimes, including drug possession, whose convictions were affirmed by the U.S. Air Force Court of Criminal Appeals.

Their convictions were affirmed by panels that included a judge who was also serving at the time on the U.S. Court of Military Commission Review, Vladeck told Bloomberg BNA.

CMCR judges “are almost certainly principal officers—and so must be appointed by the president with the advice and consent of the Senate,” Vladeck wrote in a blog.

Service on the military commissions “required those judges’ termination from the military,” which would have disqualified them from hearing the petitioners’ appeals, he said.

The question is whether their appointments to the military commissions review panel effectively stripped them of their military status, which is necessary if they are to serve on the Air Force Court of Criminal Appeals, Paradis said.

Only one of the cases below— Ortiz v. United States—reached the merits stage, Vladeck said. The other two cases were declared moot because the judge’s CMCR appointment had not yet become final at the time of the CCA appeal.

In Ortiz, the CCA held that, even if the CMCR service triggered the statute, the petitioner was not entitled to relief from his court-martial conviction, Vladeck said.

With this reading of the law, “which the government fully endorsed,” the statute “would have almost no teeth,” because there would “be no real sanction for violating it,” he said.

Fallout from Case

The issues raised in the case affect about 200 court-martial convictions that could be declared legally invalid if the Supreme Court agrees with the petitioners, Paradis said.

Furthermore, the USCMR hears appeals from the military commissions in Guantanamo, which are solely used to try Guantanamo detainees, he said.

“All but one” of the cases pending in Guantanamo—including the September 11th case—have been affected “in some way” by this issue, Paradis said.

The petitions ask:

  •  Did these judges’ service on the U.S. Court of Military Commission Review disqualify them from continuing to serve on the U.S. Air Force Court of Criminal Appeals under 10 U.S.C. §973(b)(2)(A)(ii)?
  •  Whether these judges’ simultaneous service on the U.S. Court of Military Commission Review and U.S. Air Force Court of Criminal Appeals violated the Appointments Clause?
The DOJ declined to comment on the cases.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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