Thursday, October 08, 2009

Appellate Review of Military Commissions

Eugene R. Fidell

In the coming weeks there will be no shortage of analysis of the military commission provisions that have emerged from the conference committee on the National Defense Authorization Act. As good a place as any to kick off the discussion here on Balkinization is the bill’s provisions for appellate review of military commission trials. The appellate process will include automatic, but waivable, review by a “United States Court of Military Commission Review” followed by appeal as of right to the United States Court of Appeals for the District of Columbia Circuit, with the usual opportunity for Supreme Court review on writ of certiorari. If you think this is just fine, here are three points to ponder.

First, why create an intermediate appellate court for so few cases? After all, no one seems to think there will be more than a couple of dozen military commission trials, especially after the Administration completes its screening to decide which of the potential military commission cases can wisely be shunted into the district courts. In a time of austerity, one would hope that budget-conscious legislators would have thought twice about the cost of this court. This is particularly so because the military services already have intermediate appellate courts. These are the four service “courts of criminal appeals,” created by the Uniform Code of Military Justice (UCMJ). The slight case load associated with review of a handful of military commission cases could easily have been accommodated by these courts, which have existed under one name or another since 1951, when the UCMJ took effect. The judges of these courts are either active duty senior judge advocates or, in a few cases, retired judge advocates now employed by the government as civil servants. There is plenty of military law expertise on these courts. Admittedly, these courts are separate from one another, and it may be awkward to refer all military commission cases to, for example, the Army Court of Criminal Appeals, but there’s really no reason these cases could not be centralized in one of the service courts, as the accuseds are obviously not members of our armed forces. Of note, the judges of the Court of Military Commission Review do not enjoy the benefit of fixed terms of office, which is a key hallmark of independence. Although the Supreme Court decided in Weiss v. United States, 510 U.S. 163 (1994), that due process does not require military judges to have fixed terms, the Army and the Coast Guard (my old outfit), to their credit, have introduced three-year terms for their trial and appellate military judges. Military Commission accuseds’ first tier of appellate review will be heard by at-will judges.

Did I mention that our military personnel do not even get access to the courts of criminal appeals unless their sentence extends to death, a punitive discharge, or a year or more of confinement, 10 U.S.C. § 866(b)(1), whereas anyone convicted by military commission is entitled to review by the Court of Military Commission Review, regardless of the sentence?

Second, why involve the District of Columbia Circuit? We have had a specialized civilian appellate military court since 1951—originally known as the Court of Military Appeals and later renamed the United States Court of Appeals for the Armed Forces (CAAF). Although the judges must be drawn from civilian life and may not have been retired after 20 years’ service, 10 U.S.C. §§ 942(b)(1), -(b)(4), the court has overwhelmingly been populated by jurists who have served in the armed forces. This is true of each of the five currently sitting judges and all but one of the senior judges. It remains a mystery why Congress has not seen fit to confer on these judges appellate jurisdiction over military commission cases, unless it was felt that the District of Columbia Circuit could be counted on in ways that CAAF could not be. I am not expecting any member of the House or Senate to explain the reasoning in the choice between these two courts. It certainly cannot have been CAAF’s workload; although the court screens many petitions for review, it decided only 46 cases in its last Term of Court by full opinion.

Adding to the mystery surrounding this avoidance of our country’s specialized court is the fact that military commission accuseds will, at this second stage of the appellate process, receive review by life-tenured Article III judges, whereas members of our own forces—most of whom by far are United States citizens—who fall afoul of the UCMJ can expect to appear before the Article I CAAF judges who serve for 15-year terms. This is not to impugn the CAAF judges’ independence and impartiality, but there is a difference between Article I and Article III status, and Congress has repeatedly declined to confer Article III status on the CAAF judges. Result: military commission accuseds will receive the benefit of the Article III gold standard of judicial independence, while our own personnel who are convicted by courts-martial get second-best. Someone will have to explain this anomaly to me.

Finally, it is entirely appropriate that Congress has provided for Supreme Court review of military commission cases. The difficulty here lies in the fact that our own personnel who are convicted by courts-martial cannot even seek certiorari unless CAAF, in its discretion, grants review or an extraordinary writ. 10 U.S.C. § 867a(a); see also 28 U.S.C. § 1259. (This limitation does not apply to capital cases and the occasional cases that are referred to CAAF by the Judge Advocates General.) Indeed, the Solicitor General has taken the position—wrong in my view—that it is not enough that CAAF have granted review of the case, as the statute indicates, but that it have granted review of the particular issue sought to be presented to the Supreme Court. Once again, the result is that military commission accuseds enjoy greater rights than do our own personnel. How can this be defended?

Legislation is pending to remove CAAF’s gatekeeper function (S. 357, The Equal Justice for United States Military Personnel Act of 2009; H.R. 569, The Equal Justice for Our Military Act of 2009), so that any court-martial accused whose case has reached CAAF would be able to seek certiorari, whether or not CAAF granted discretionary review or extraordinary relief. It is a scandal that Congress did not rectify this defect if it was committed to granting military commission accuseds untrammeled access to the Supreme Court.

I recognize that some of what I have suggested here smacks of saying of the provisions for appellate review of military commission cases that (to use a colorful phrase I once heard Attorney General Mukasey use to good effect in a related context) “the bride is too beautiful.” I’m not interested in making this bride less beautiful by reducing anyone’s rights, but Congress owes it to the country to produce legislation that makes sense against the larger canvas of our legal system.


The two tier approach suggests the desire to treat these people differently. Since I think too much of that is going on now, it makes me wary.

But, at times, disfavored alleged enemy aliens very well might require special protections. An ordinary service person has possible political means of relief that the former class does not.

Thanks also for leaving open the comments. These guest posts are appreciated but tend to be shy and not allow comments.

The text of the bill is available on the PEGC web site here:



The difference is simple: the intent is to prevent the accused from getting a fair trial in a real court of law. These commissions are war crimes in violation of Hague 1907, Geneva 1949, 18 USC 2441 (war crimes).
They are also unconstitutional inasmuch as they amount to bills of attainder and a usurpation by congress and the executive of the Art. III jurisdiction of the courts.

I've been impressed over the years with the attorneys, many of them from large law firms as well as those associated with ACLU, offering pro bono legal defense-services to aliens before our courts and military commissions. The costs for such pro bono services are quite expensive. I wonder to what extent such high costs serve to limit the defenses that can be made available to such aliens, especially with military commissions as opposed to Article III courts that such attorneys may be more familiar and comfortable with, and whether such limitations are intentional on the part of government to diminish the ability of such attorneys to provide appropriate representation to such alien-clients.

These questions are not all that difficult:

1) Congress provided enemy combatants with a cadillac appeal process to gain Dem votes to pass the legislation.

2) Congress designated the DCA to serve as the intermediate appellate court because it had been wresting with these issues for years and because it actually followed the intent of Congress in the DTA.

3) Providing unlawful enemy combatants with greater rights than our soldiers can in no way be defended. However, the GOP needed Dem votes and the Dems wanted to provide even more rights to the enemy.

Well, so much for any interesting legal issues. It's just all partisanship and politicking all the time.

So glad to have that cleared up.


There are actually some very interesting legal issues here -- they're just buried under an enormous pile of BS generated by the government and the Republicans.

See my blog articles...

18 USC 2441

Boumediene and 28 USC 2241(e)(2)

Thanks , Charles.

Come to think of it, you'll find plenty of relevant analysis on Gene Fidell'sNational Institute of Military Justice (NIMJ) website.


Congress considering complex legal issues? Most of these people do not even read the bills before voting on them. Politics is the main impetus for everything Congress does.


To be honest, my comment was in response to your comment, not to the OP.

I would love it if we could discuss the legal issues here.

Today's (10/15/09) WaPo has an editorial titled: "Detainees on Trial. Congress takes another crack at remaking military commissions." It supports the bill now pending in the Senate. The editorial does not, however, address the concerns of this post regarding US military personnel having less rights than the detainees. Perhaps as a sense of justice that should be a next step. But that doesn't mean that this bill should not pass.

Excellent post! I was not aware until now of these limitations on judicial review by Article III courts of court martial judgments.

I assume, however, that regardless of any of that, imprisoned court martial convicts can always file a writ of habeas corpus in district court, correct?

This comment has been removed by the author.

PhysioProf, while a convicted servicemember whose liberty is being deprived can file a petition for writ of habaes corpus in U.S. district court, those courts apply an extremely constrained scope of review. In the 10th Circuit -- which, as home of the USDB, is probably the leading circuit in this area -- essentially any issue raised in the course of appellate review is deemed fully and fairly decided and thus ineligible for second guessing on habeas. Any issue that could have been raised on appeal but wasn't is deemed waived. This results in a Catch-22 that makes obtaining relief almost impossible.

Thanks for the info, Dwight.

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