Academic journal article Harvard Law Review

Separation of Powers - Appointments Clause - D.C. Circuit Furthers Uncertainty in Appointments Clause Test for Executive Branch Reassignments

Academic journal article Harvard Law Review

Separation of Powers - Appointments Clause - D.C. Circuit Furthers Uncertainty in Appointments Clause Test for Executive Branch Reassignments

Article excerpt

Separation of Powers--Appointments Clause--D.C. Circuit Furthers Uncertainty in Appointments Gause Test For Executive Branch Reassignments.--In re al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015).

The Constitution's Appointments Clause provides that the President, "by and with the Advice and Consent of the Senate, shall appoint ... Officers of the United States," except that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." (1) The Constitution thus creates a sphere of shared responsibility in staffing the federal government. (2) But it also carves out instances in which the burden of joint responsibility can be streamlined: the appointments of "inferior officers." The text on its face contains several ambiguities; for example, it fails to define what makes an officer (3) "inferior." And it is silent about the extent to which Congress may add duties to an existing office, whether appointed officers can take on different roles without reappointment, and who can remove appointed officers and on what grounds. Last June, in In re al-Nashiri, (4) the D.C. Circuit grappled with these ambiguities and was ambivalent on the question of whether inferior officers may be reassigned to fulfill principal officer duties without reappointment. But to avoid compromising the interests protected by the Appointments Clause, the relevant precedent should be read narrowly.

In the wake of the September 11 attacks, President George W. Bush instituted military commissions to try suspected terrorists. (5) The Military Commissions Act of 2006 (6) (MCA) subsequently prescribed the structure and procedures of the commissions and established the Court of Military Commissions Review (CMCR), an intermediate appellate court whose decisions are reviewed by the D.C. Circuit. (7) President Obama's push for reform of Guantanamo resulted in amendments to the MCA in 2009, which expanded the authority of the CMCR to review all matters of fact and law and altered the court's composition to include civilian judges in addition to military judges. (9) Civilian CMCR judges are appointed like Article III judges: by the President with the advice and consent of the Senate. (10) Military judges are not. Instead, the CMCR's military judges are commissioned military officers serving as appellate judges in the courts-martial context who are then reassigned to the CMCR by the Secretary of Defense. (11)

Abd al-Rahim Hussein Muhammed al-Nashiri (Nashiri) is a Guantanamo Bay detainee and alleged member of al-Qaeda accused of terrorism and related war crimes, including masterminding the bombings of the U.S.S. Cole and a French oil tanker, the M/V Limburg. (12) In 2011, the Defense Department commenced military commission proceedings against Nashiri. (13) In 2014, the military trial judge dismissed the M/V Limburg charges. (14) The Government appealed the order. (15) The appeal came before a CMCR panel of one civilian and two military judges. (16) Nashiri moved to recuse the military judges, arguing that they were assigned to the CMCR in violation of the Appointments Clause, and that the requirement of "good cause" or "military necessity" to remove the judges interfered with the Commander-in-Chief Clause. (17) When the CMCR denied his motion, Nashiri petitioned the D.C. Circuit for a writ of mandamus to force the recusal of the military judges. (18)

The D.C. Circuit denied the mandamus petition. (19) Writing for the panel, Judge Henderson (20) concluded that, while the court indeed had the power to issue a writ of mandamus, to do so would not be proper. (21) She explained that mandamus is typically appropriate only if three conditions are satisfied: (1) there are "no other adequate means to attain the relief' sought; (22) (2) the petitioner shows that his "right to issuance of the writ is clear and indisputable"; and (3) the issuing court is "satisfied that the writ is appropriate under the circumstances. …

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