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Monday, January 24, 2011

The Most Inexplicable One-Year Delay in Appellate History?

With a tip of the hat to Dwight Sullivan at CAAFlog and to Bobby Chesney at Lawfare, let me be at least the third person to note today's decisions by several judges of the Court of Military Commission Review to recuse from deciding the pending appeals in Hamdan and al-Bahlul, both of which were argued to that court a year ago this Friday. 

I don't have any quibble with the reasons given by Chief Judge O'Toole for recusing. If anything, his is an admirable view of the need for these proceedings to be as hallowed and conflict-free as possible. Rather, my exasperation, like Bobby's, is with why it has taken so long for things to progress to this point. There are currently no other cases pending before the CMCR. There is no question that the party that loses in the CMCR will appeal (as of right) to the D.C. Circuit. And, under 10 U.S.C. 950g(d), the D.C. Circuit "may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the [CMCR], and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict." In other words, the CMCR's decisions in these cases, whatever they are, won't have much of an effect on the D.C. Circuit, which would review legal issues de novo in any event. The only thing that matters is some decision from which the losing party can properly take an appeal.

As I wrote last year in an article surveying the merits of the jurisdictional issues, "It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders." Last week's news that the Administration is considering re-commencing the commissions adds only further urgency to the timely resolution of these questions. And yet, until and unless the CMCR decides these questions in Hamdan and al-Bahlul, and appeals are taken to the D.C. Circuit (and, perhaps, to the Supreme Court), those questions will remain unanswered.

Suffice it to say, the time has long since passed for the CMCR, however constituted, to do its job--and get out of the way.

Posted by Steve Vladeck on January 24, 2011 at 10:36 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink


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Somehow, part of the first sentence in my last post got cut off. It should have read:

"While I have done extensive research on the history of U.S. Military Commissions...."

Posted by: Don Rehkopf | Feb 12, 2011 4:53:11 PM

U.S. Military Commissions (to include an Amicus Brief in Hamdan on that subject), limiting my responses to Question II in the call for Briefs in Al-Bahlul, the first question is, are we talking about U.S. or international law? The Civil War military comm'n prosecutions all involved U.S. "loyalty" issues. The Philippine cases are more problematic - but, involved disloyalty against the US, even though the "war" was fought for Philippine independence from the U.S.

But, what about Abdul, an Afghan farmer giving food and shelter to Taliban troops fighting us? His loyalty was to his government, the Taliban, not to the U.S. - so conceptually, how can that conduct violate international law?

For an interesting take on the "loyalty" concept, see Cramer v. U.S., 325 U.S. 1 (1945); and Haupt v. U.S., 330 U.S. 631 (1947) [talk about "appellate delay" - Haupt was argued at SCOTUS in November of 1943, and decided in March of 1947!!]. Of particular note and relevance here, Cramer and Haupt involved the CIVILIAN co-conspirators to the Nazi Saboteur Case, Ex Parte Quirin, 317 U.S. 1 (1942). Notably, they were tried in federal court, not by military commission.

If you can locate a copy of an invaluable book, J.Randall, "The Civil War and Reconstruction," (1937), the 20th Century's leading Lincoln scholar, extensively discusses military commission's authority especially over citizens and is a very informative read on how the U.S. used military commissions during and after the Civil War.

Posted by: Don Rehkopf | Feb 11, 2011 6:44:36 PM


Everything I know about the first names, rank, service, and appointment date of the four new CMCR judges is the result of one short post by Dwight Sullivan at CAAFlog.com, which was evidently based on his personal contacts rather than on any official record to which he had access.

The first initial, and last name, of each of those four new judges is now formally documented in the flurry of CMCR filings by the en banc court in January, 2011. But I've only seen those new filings because Dwight Sullivan obtained access to them, and now hosts them at CAAFlog.com. [Likewise, the only on-line source for the briefs arguing the motions to disqualify some sitting CMCR judges last September is, again, Dwight Sullivan and CAAFlog.com.]

Those new filings also confirm that only five judges who were appointed to the CMCR sometime before September, 2010 (B. Brand, D. Conn, D. O'Toole, E. Price, & C. Thompson) remain on the court today, and two of those five (O'Toole & Thompson) are recused from any further participation in either of these appeals.

Thus, at present, the United States Court of Military Commission Review is apparently composed of a total of nine judges (none civilian), two of whom will not be participating in the decision in Case 09-001 (Al Bahlul) and three of whom (including E. Price) will not be participating in the decision in Case 09-002 (Hamdan).

Robert Chesney, who has started to helpfully highlight the significance of the long-awaited CMCR rulings in these appeals, provides a useful CAAFlog.com query, which pulls all of their posts referencing "CMCR" together on one webpage for easy reference:


Also of interest, with regard to the January 25, 2011 CMCR order for a new oral argument on two specified issues in the Al Bahlul appeal, to be held in Washington, D.C. on March 17, is this recent informative discussion by Kevin Jon Heller and commenters responding to his post:


Posted by: CAAFLOGreader | Feb 10, 2011 9:44:50 PM

Thanks, in turn, for your further elaborations, Don.

I was aware of the subsequent formalization (and thus delay) of the Commission verdicts by the Convening Authority - but didn't subtract those time periods, considering that process (at least as practiced in the Commissions) to be a formality that does little but add unnecessary delay to the eventual appeal. But, of course, you're right that I can't legitimately blame the CMCR judges for the months-long delay caused by the Convening Authority before the CMCR court entered the picture.

For what it's worth - since I've spent quite a bit of time tracking this, and combed through documents to pin it down to the extent I could, and also listened to the Hamdan oral argument (which is available at the CMCR website, unlike the Al Bahlul argument) - the two three-judge CMCR panels that heard the January, 2010 oral arguments were, to the best of my knowledge, in fact as follows.

Hamdan [09-002] Oral Argument

Navy Captain Eric E. Geiser (retired, and left CMCR, 9/1/2010)

Army Colonel David L. Conn (still on CMCR/reappointed 10/2010)

Air Force Colonel Barbara G. Brand (still on CMCR; referenced by name during the oral argument by Francis "Fran" Gilligan, retired Army Colonel and civilian CMCR appellate counsel for the government)

Al Bahlul [09-001] Oral Argument

Navy Captain Eric C. Price (still on CMCR; recused, at get-go, from Hamdan en banc appeal)

Air Force Colonel Cheryl Thompson (still on CMCR; since recused, sometime between September, 2010 and January, 2011, from both cases, after status challenged by counsel for Hamdan and Al Bahlul in September, 2010)

Possibly Army Colonel David L. Conn (still on CMCR/reappointed 10/2010)

Or possibly Acting Chief Judge, Navy Captain Daniel E. O'Toole (either he or Eric C. Price apparently replaced former Chief Judge, civilian Frank J. Williams on this panel; Williams evidently resigned from the CMCR on 12/31/2009 or immediately thereafter; O'Toole has since recused himself from both cases as noted in the excerpt in my first comment, as of January 21, 2011)

New CMCR Judges assigned in October, 2010 (only source for that date: Dwight Sullivan at CAAFlog.com), and now hearing both appeals, as part of an en banc court (en banc status was suddenly announced in September, 2010 and again, for both cases, on January 24, 2011):

Army Colonel Theresa Gallagher
Army Colonel John Hoffman
USMC Colonel Joseph R. Perlak
Army Colonel Martin Sims

You'll get no argument from me about the following (although I doubt that the average observer reading a newspaper account of a CMCR verdict is likely to appreciate such distinctions); well said:

But, the military judges know "military justice," which is a far cry from anything close to the MCA and the Military Commissions' procedures at issue -- I know a number of those judges, experienced trial judges but their experience in this area of the law is no greater than any other persons with U.S. military law experience, except perhaps those who have been working on commission issues since 2001.

The en banc decision is most likely due to the fact that the "eyes of the world" are on them, they lack tenure and all of the other assorted problems/issues traditionally associated with the process of "selecting" military judges. And, their worst nightmare would have been inconsistent panel rulings.

Posted by: CAAFLOGreader | Feb 10, 2011 2:23:01 AM

CAAFLOGreader: Thanks for your thoughts. But, yes I know full well that the "delay" is post-argument. By civilian standards, that's long, by military standards, not especially so. But, let me correct you on a very arcane point peculiar to military law. Hamdan's trial ended in August 2008; he was not "convicted" until the Convening Authority acted on 16 July 2009. The same with Al Bahlul - the Convening Authority did not act until 3 June 2009.

The (at least detailed) Judges in Hamdan were: Judge Beister (Civilian), COL David Conn (Army) & Captain Eric Geiser (Navy). In Al Bahlul, the detailed Judges were: Judge Williams (Civilian); COL Conn (Army) & Colonel Cheryl Thompson (USAF).

But, you're correct, no where does it say which judges actually heard the oral arguments and which Judges remain for the en banc consideration - the DoD's website for the Court is hopelessly out of date, intentionally so I suspect.

But, I must respectfully disagree with your comment on the "professional military appellate judges." What qualifications in this quirky and arcane area of military jurisprudence did the civilian judges have? None, other than political connections. The two civilians have long retired. Here's the best that I could find:

But, the military judges know "military justice," which is a far cry from anything close to the MCA and the Military Commissions' procedures at issue -- I know a number of those judges, experienced trial judges but their experience in this area of the law, is no greater than any other persons with U.S. military law experience, except perhaps those who have been working on commission issues since 2001.

The en banc decision is most likely due to the fact that the "eyes of the world" are on them, they lack tenure and all of the other assorted problems/issues traditionally associated with the process of "selecting" military judges. And, their worst nightmare would have been inconsistent panel rulings.

Posted by: Don Rehkopf | Feb 9, 2011 8:53:39 PM

Don -

While I appreciate your perspective as someone familiar with the traditional military justice system's appellate process, these CMCR appellate delays are one year post-oral argument delays.

Hamdan's Commission conviction occurred in August, 2008.

Al Bahlul's Commission conviction occurred in November, 2008 (and, unlike Hamdan, he remains at Guantanamo).

Thus, these are both "post-trial" delays of two years and counting, in the first two appeals on the merits of this highly-controversial system, whose reputation Acting Chief Judge of the CMCR and Navy Captain Daniel O'Toole (now suddenly recused from both appeals, a full year after oral arguments were held), at least, perceives as vital:

Though I am firmly convinced that my judicial qualifications have, at all times, met the statutory requirements, and that, in view of the action of the Deputy Secretary of Defense, there is no regulatory impediment to my continued service on the Court in these cases, the public perception of this new and unique intermediate appellate court is deserving of the utmost sensitivity.


The disposition of this case, one of the first two military commission convictions to be reviewed on appeal, will chart historic precedent regarding the jurisdiction of military commissions, as well as potentially delineating for further review the breadth and reach of Constitutional protections in the framework of what has been referred to by some as "assymetric warfare." ... I am equally unwilling to contribute to anything less than full public confidence in the integrity of the military commission process, and the legitimacy of this Court as it renders its first substantive rulings.9

Aside from the fact that two wrongs don't make a right, how many cases before the Courts of Criminal Appeals for the armed services have the majority on the panel of judges hearing the case replaced post-oral argument - even many months after oral argument, as has happened here, and setting aside the belatedly-imposed en banc status of these appeals, with apparently four brand new CMCR judges, as of October, 2010, making up the majority of the seven-member en banc court now considering them? And is it usual in the UCMJ system for no one but those present at the oral argument to know which judges composed the panel hearing the argument? [I can only attempt to deduce which three judges heard the Al Bahlul argument from some indirect references in the briefs filed on behalf of Hamdan and Al Bahlul in September, 2010. One place I can't find that information - or even the current roster of the CMCR court itself - is on the Department of Defense website for the CMCR, or in the one media account of the oral arguments held on the same day in Washington, D.C. a year ago.]

In short, I heartily concur with and share Steve Vladeck's disgust. The only place I may differ with him is that I think the decisions of the professional military appellate judges in these CMCR appeals, when finally delivered - assuming the rulings are not politically influenced and are competent and thorough - are going to carry extra weight, unless and until overturned, simply because this will be the military ruling on the military - a first square-corners judicial review of the legal justification for the Guantanamo military commissions that is not likely to be overlooked.

Posted by: CAAFLOGreader | Feb 9, 2011 2:15:39 AM

For those of us who practice "military law," a one year, post-trial appellate delay is not out of the ordinary -- if anything, it's on the short-end of the stick especially for complex cases. As an aside, sitting on the CMCR is not the primary "bench" for these Judges, sort of like the FISA Appeals court. The CMCR judges [unrecused at least], sit as appellate judges on their respective military Courts of Criminal Appeals.


Posted by: Don Rehkopf | Feb 8, 2011 6:12:44 PM

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