Abd Al-Rahim Hussein Al-Nashir v. ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2015 Decided June 23, 2015
No. 14-1203
IN RE: ABD AL-RAHIM HUSSEIN MUHAMMED AL-NASHIRI,
PETITIONER
On Petition for Writ of Mandamus and Prohibition to
the United States Court of Military Commission Review
Michel D. Paradis, Counsel, Office of the Chief Defense
Counsel, argued the cause for the petitioner. Richard
Kammen was with him on the petition for writ of mandamus
and the reply.
John F. De Pue, Attorney, United States Department of
Justice, argued the cause for the respondent. Steven M. Dunn,
Chief, Appellate Unit, and Joseph F. Palmer, Attorney, were
with him on the opposition to the petition for writ of
mandamus.
Before: HENDERSON, ROGERS and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Abd al-
Rahim Hussein Muhammed al-Nashiri (Nashiri) is a detainee
at Guantanamo Bay, Cuba, who is currently being tried by
military commission. He asks this Court to resolve, via
mandamus, two challenges to the constitutionality of the
United States Court of Military Commission Review
(CMCR). Our answer is simple: Not now. Because Nashiri
can adequately raise his constitutional challenges on appeal
from final judgment, we deny his petition.
I.
A.
The current structure of the military commissions
operating at Guantanamo Bay is the product of an extended
dialogue among the President, the Congress and the Supreme
Court. See generally Bahlul v. United States, 767 F.3d 1, 12–
15 (D.C. Cir. 2014) (en banc); Aamer v. Obama, 742 F.3d
1023, 1028–30 (D.C. Cir. 2014). We briefly summarize that
back-and-forth here.
Immediately following the attacks of September 11,
2001, the Congress enacted an Authorization for Use of
Military Force (AUMF), empowering the President to use “all
necessary and appropriate force” against the perpetrators. See
Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001).
President George W. Bush relied on the AUMF to capture,
detain and ultimately try enemy combatants by military
commission at Guantanamo Bay. See Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against
Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). In Hamdan
v. Rumsfeld, however, the Supreme Court held that the
military commissions failed to comply with the procedural
protections of the Uniform Code of Military Justice (UCMJ)
and Geneva Conventions. See 548 U.S. 557, 567 (2006). But
3
because those protections were creatures of statute, several
Justices noted that the Congress was free to amend them. See
id. at 653 (Kennedy, J., joined by Souter, Ginsburg, Breyer,
JJ., concurring).
The Congress responded with the Military Commissions
Act of 2006 (2006 MCA), Pub. L. No. 109-366, 120 Stat.
2600, 2739–44. The 2006 MCA sanctioned the use of
military commissions, 10 U.S.C. § 948b(b), and largely
exempted them from the strictures of the UCMJ and Geneva
Conventions, see id. § 948b(c)–(d); 120 Stat. at 2602. The
2006 MCA also directed the Secretary of Defense to establish
the CMCR, 120 Stat. at 2621—an intermediate appellate
tribunal for military commissions akin to each military
branch’s Court of Criminal Appeals (CCA) for courts martial,
see 10 U.S.C. § 866. But whereas the decisions of the CCAs
are reviewed by another military court—the Court of Appeals
for the Armed Forces (CAAF), id. § 867—the CMCR’s
decisions are reviewed by this Court, id. § 950g. 1
1
Our review provision states, in relevant part:
(a) Exclusive appellate jurisdiction. – Except as
provided in subsection (b), the United States Court of
Appeals for the District of Columbia Circuit shall have
exclusive jurisdiction to determine the validity of a final
judgment rendered by a military commission (as
approved by the convening authority and, where
applicable, as affirmed or set aside as incorrect in law by
the United States Court of Military Commission Review)
under this chapter.
(b) Exhaustion of other appeals. – The United States
Court of Appeals for the District of Columbia Circuit
may not review a final judgment described in subsection
(a) until all other appeals under this chapter have been
waived or exhausted. . . .
4
The lay of the land shifted again in 2009. On assuming
office, President Barack Obama temporarily suspended the
operations of the Guantanamo Bay military commissions.
See Exec. Order No. 13,492, 74 Fed. Reg. 4897, 4899 (Jan.
22, 2009). After further review, however, the President
sought to reform the military commissions instead of
dismantling them. See JENNIFER K. ELSEA, CONG. RESEARCH
SERV., R 41163, THE MILITARY COMMISSIONS ACT OF 2009
(MCA 2009): OVERVIEW AND LEGAL ISSUES 3 (2014). The
Congress obliged and enacted the Military Commissions Act
of 2009 (2009 MCA), Pub L. No. 111-84, 123 Stat. 2190,
2574–614. The 2009 MCA added several procedural
protections for enemy combatants. See generally ELSEA,
supra, at 40–55 chart 2. It also expanded the availability of
appellate review. Under the 2006 MCA, the CMCR and this
Court could review military-commission judgments only on
“matters of law.” 120 Stat. at 2621, 2622. Pursuant to the
2009 MCA, the CMCR can now review “any matter”—fact or
law—and even “weigh the evidence” and “judge the
credibility of witnesses.” 10 U.S.C. § 950f(c)–(d). 2 This
Court then reviews the CMCR’s decisions on “matters of law,
(d) Scope and nature of review. – The United States
Court of Appeals for the District of Columbia 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 United States Court of Military Commission
Review, and shall take action only with respect to matters
of law, including the sufficiency of the evidence to
support the verdict.
10 U.S.C. § 950g(a)–(b), (d).
2
When the Government takes an interlocutory appeal,
however, the CMCR can act “only with respect to matters of law.”
10 U.S.C. § 950d(g).
5
including the sufficiency of the evidence to support the
verdict.” 10 U.S.C. § 950g(d).
Most importantly here, the 2009 MCA altered the
structure of the CMCR. The CMCR is now a “court of
record” composed of both civilian and military judges. Id.
§ 950f(a)–(b). Civilian judges are appointed to the CMCR by
the President with the advice and consent of the Senate. Id.
§ 950f(b)(3). Military judges are “assigned” by the Secretary
of Defense but they must already be “commissioned” military
officers. Id. § 950f(b)(2). Further, military judges cannot be
removed from the CMCR absent “good cause” or “military
necessity.” See id. § 949b(b)(4). As of today, two civilian
judges and eight military judges are serving on the CMCR.
See Judges U.S. Court of Military Commissions Review,
OFFICE OF MILITARY COMMISSIONS, http://www.mc.mil/
ABOUTUS/USCMCRJudges.aspx (last visited May 19,
2015). They generally sit in panels of three. See 10 U.S.C.
§ 950f(a); Promulgation of Panel Assignments, USCMCR
(July 1, 2014), http://www.mc.mil/Portals/0/Panel%20Assign
ments%20July%201%202014.pdf.
B.
Nashiri is a Saudi national and an alleged member of al
Qaeda. According to the prosecution, Nashiri is the
mastermind behind the bombings of the U.S.S. Cole and the
M/V Limburg, and the attempted bombing of the U.S.S. The
Sullivans. He was apprehended in Dubai in 2002 and
transferred to Guantanamo Bay in 2006. Nashiri is charged
with nine offenses, including terrorism, murder in violation of
the law of war, attacking civilians, hijacking a vessel and
attacking civilian objects. In 2011, the Defense Department
convened a military commission to try Nashiri on these
charges. It is seeking the death penalty.
6
In August 2014, Nashiri’s military trial judge dismissed
the charges and specifications stemming from the M/V
Limburg bombing. The Government immediately appealed
that ruling to the CMCR. See 10 U.S.C. § 950d(a)(1)
(authorizing Government to take interlocutory appeal when
military judge “terminates proceedings . . . with respect to a
charge or specification”). Two military judges and one
civilian judge were assigned to hear the Government’s
interlocutory appeal. In September 2014, Nashiri moved to
recuse the two military judges. He alleged that military
judges are assigned to the CMCR in violation of the
Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, and
cannot be freely removed in violation of the Commander-in-
Chief Clause, id. cl. 1. The CMCR denied Nashiri’s motion
in October 2014 and, one week later, Nashiri filed the petition
now before us. He asks this Court to issue a writ of
mandamus and prohibition 3 disqualifying the military judges
on his CMCR panel.
II.
This case requires us to address the two “P’s” of
mandamus: our power to issue the writ and whether issuance
would be proper. For the reasons set out below, we conclude
that we have jurisdiction to issue the writ but it would be
inappropriate to do so here.
3
For convenience, we refer to mandamus and prohibition
collectively as “mandamus.” See In re Sealed Case No. 98-3077,
151 F.3d 1059, 1063 n.4 (D.C. Cir. 1998) (“Because the grounds
for issuing the writs are virtually identical, . . . and because
‘mandamus’ is the more familiar term, we prefer to use it.” (citation
and quotation marks omitted)).
7
A.
We first address our jurisdiction. See In re Asemani, 455
F.3d 296, 299 (D.C. Cir. 2006) (“Before considering whether
mandamus relief is appropriate, . . . we must be certain of our
jurisdiction.”). The All Writs Act allows us to issue “all writs
necessary or appropriate in aid of [our] jurisdiction[].” 28
U.S.C. § 1651(a). It is not, however, “an independent grant
of appellate jurisdiction.” Clinton v. Goldsmith, 526 U.S.
529, 535 (1999) (quoting 16 WRIGHT & MILLER § 3932 (2d
ed. 1996)). In other words, there must be an “independent”
statute that grants us jurisdiction before mandamus can be
said to “aid” it. Id. at 534–35. We have such a statute here:
the 2009 MCA gives this Court “exclusive jurisdiction to
determine the validity of a final judgment rendered by a
military commission.” 10 U.S.C. § 950g(a). Accordingly, we
can issue a writ of mandamus now to protect the exercise of
our appellate jurisdiction later. See In re Tennant, 359 F.3d
523, 529 (D.C. Cir. 2004) (for purpose of mandamus, “[o]nce
there has been a proceeding of some kind . . . that might lead
to an appeal, it makes sense to speak of the matter as being
‘within [our] appellate jurisdiction’—however prospective or
potential that jurisdiction might be.” (first alteration and
second emphasis added)); Roche v. Evaporated Milk Ass’n,
319 U.S. 21, 25 (1943) (“[An appellate court’s mandamus
jurisdiction] extends to those cases which are within its
appellate jurisdiction although no appeal has been perfected.
Otherwise the appellate jurisdiction could be defeated . . . by
unauthorized action of the district court obstructing the
appeal.”). The finality requirement of the 2009 MCA, 10
U.S.C. § 950g(a), is not to the contrary because mandamus is
understood to be an “exception[]” to the ordinary rules of
finality. WMATC v. Reliable Limousine Serv., LLC, 776 F.3d
1, 8 & n.6 (D.C. Cir. 2015); see also Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 111 (2009).
8
Of course, when it comes to jurisdiction, the Congress
giveth and the Congress taketh away. See Estep v. United
States, 327 U.S. 114, 120 (1946) (“[E]xcept when the
Constitution requires it, judicial review of administrative
action may be granted or withheld as Congress chooses.”).
The 2006 MCA contains a jurisdiction-stripping provision
that states:
(e)(1) No court, justice, or judge shall have
jurisdiction to hear or consider an application for a
writ of habeas corpus filed by or on behalf of an
alien detained by the United States who has been
determined by the United States to have been
properly detained as an enemy combatant or is
awaiting such determination.
(2) . . . [N]o court, justice, or judge shall have
jurisdiction to hear or consider any other action
against the United States or its agents relating to any
aspect of the detention, transfer, treatment, trial, or
conditions of confinement of an alien who is or was
detained by the United States and has been
determined by the United States to have been
properly detained as an enemy combatant or is
awaiting such determination.
28 U.S.C. § 2241(e) (emphases added). 4 The Government
believes that section 2241(e)(2) revokes our power to issue
writs of mandamus. We disagree.
4
In Boumediene v. Bush, the Supreme Court held that
subsection (1) of the 2006 MCA’s jurisdiction-stripping provision
constituted an unconstitutional suspension of the writ of habeas
corpus. See 553 U.S. 723, 733 (2008). Subsection (2), however,
9
A statute does not strip our authority under the All Writs
Act absent a “clear[]” statement to that effect. Belbacha v.
Bush, 520 F.3d 452, 458 (D.C. Cir. 2008) (citing Califano v.
Yamasaki, 442 U.S. 682, 705 (1979); FTC v. Dean Foods
Co., 384 U.S. 597, 608 (1966); Scripps–Howard Radio v.
FCC, 316 U.S. 4, 11 (1942)). The clear-statement rule is a
species of the constitutional avoidance doctrine: if the
Congress stripped our power to issue writs of mandamus,
some constitutional violations would escape review
altogether. See id. at 458–59. This would present a “serious
constitutional question”—one we should avoid, if possible.
Webster v. Doe, 486 U.S. 592, 603 (1988).
In Belbacha, we held that section 2241(e)(2) “does not
displace [our] remedial authority, pursuant to the All Writs
Act, to issue an auxiliary writ in aid of [our] jurisdiction.”
520 F.3d at 458 (quotation marks omitted). It does not satisfy
the clear-statement rule, we reasoned, because it fails to
expressly include our “remedial powers.” Id. at 458 n.*.
Although Belbacha deals with our authority to issue a
preliminary injunction, its holding governs this case as well.
The text of section 2241(e)(2) makes no mention of
“mandamus”—an important omission under our case law. In
Ganem v. Heckler, for example, we considered whether the
following provision stripped the district court’s mandamus
power:
No action against the United States, the Board, or
any officer or employee thereof shall be brought
under [the statutory grants of jurisdiction to the
district courts] to recover on any claim arising under
this title.
remains in force. See Janko v. Gates, 741 F.3d 136, 140 n.3 (D.C.
Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015).
10
746 F.2d 844, 850–51 (D.C. Cir. 1984) (quoting Social
Security Act Amendments of 1939, Pub. L. No. 76–379,
§ 205(h), 53 Stat. 1360, 1371 (1939)). We compared the
provision to the language of another statute that declared:
[N]o other official or any court of the United States
shall have power or jurisdiction to review any . . .
decision [of the Veterans’ Administration] by an
action in the nature of mandamus or otherwise.
Id. at 851–52 (quoting Pub. L. No. 91-376, § 8, 84 Stat. 787,
790 (1970)) (emphasis in original). Comparing the two
statutes, we concluded that “when Congress desire[s] to
prohibit actions in the nature of mandamus . . . , it d[oes] so
expressly.” Id. at 851; see also id. at 852 (“The fact that
Congress knows how to withdraw a particular remedy and has
not expressly done so is some indication of a congressional
intent to preserve that remedy.”). The same reasoning applies
here: the text of section 2241(e)(2) bears little resemblance to
statutes that expressly strip mandamus jurisdiction. 5 And the
Government has not identified a reference to mandamus in
the legislative history of the 2006 MCA, “even assuming
5
See, e.g., 5 U.S.C. § 8128(b)(2) (“The action of the Secretary
[of Labor] or his designee in allowing or denying a payment under
this subchapter is . . . not subject to review . . . by a court by
mandamus or otherwise.” (emphasis added)); 38 U.S.C. § 511(a)
(“[T]he decision of the Secretary [of Veterans Affairs] as to any
such question shall be final and conclusive and may not be
reviewed . . . by any court, whether by an action in the nature of
mandamus or otherwise.” (emphasis added)); 42 U.S.C. § 1715(“The action of the Secretary [of Labor] in allowing or denying any
payment under subchapter I of this chapter shall be final and
conclusive on all questions of law and fact and not subject to
review by any other official of the United States or by any court by
mandamus or otherwise.” (emphasis added)).
11
legislative history alone could provide a clear statement
(which we doubt).” United States v. Kwai Fun Wong, 135
S. Ct. 1625, 1633 (2015).
In short, statutory silence does not equate to a clear
statement. See Sossamon v. Texas, 131 S. Ct. 1651, 1660
(2011); see also Dean Foods, 384 U.S. at 608 (courts
maintain All Writs Act authority “[i]n the absence of explicit
direction from Congress” (emphasis added)). We therefore
conclude that, notwithstanding section 2241(e)(2), this Court
has jurisdiction to issue a writ of mandamus in aid of our
appellate jurisdiction of military commissions and the CMCR.
We are nonetheless mindful of the final-judgment rule
that the Congress included in the 2009 MCA. See 10 U.S.C.
§ 950g(a). Although it does not defeat our jurisdiction, the
rule serves an important purpose that would be undermined if
we did not faithfully enforce the traditional prerequisites for
mandamus relief. See Kerr v. U.S. Dist. Court for N. Dist. of
Cal., 426 U.S. 394, 403 (1976) (“A judicial readiness to issue
the writ of mandamus in anything less than an extraordinary
situation would run the real risk of defeating the very policies
sought to be furthered by th[e] judgment of Congress” that
“appellate review should be postponed until after final
judgment.” (ellipsis omitted)); In re Papandreou, 139 F.3d
247, 250 (D.C. Cir. 1998) (“Lax rules on mandamus would
undercut the general rule that courts of appeals have
jurisdiction only over final decisions . . . and would lead to
piecemeal appellate litigation.” (quotation marks and citation
omitted)). We turn to those prerequisites now.
12
B.
Mandamus is proper only if three conditions are satisfied:
First, the party seeking issuance of the writ must
have no other adequate means to attain the relief he
desires . . . . Second, the petitioner must satisfy the
burden of showing that his right to issuance of the
writ is clear and indisputable. Third, even if the first
two prerequisites have been met, the issuing court, in
the exercise of its discretion, must be satisfied that
the writ is appropriate under the circumstances.
Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S.
367, 380–81 (2004) (citations, brackets and quotation marks
omitted). We conclude that Nashiri does not satisfy the first
and second requirements.
1.
As we often caution, “[m]andamus is a ‘drastic’ remedy,
‘to be invoked only in extraordinary circumstances.’ ”
Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)).
It is not available unless “no adequate alternative remedy
exists.” Barnhart v. Devine, 771 F.2d 1515, 1524 (D.C. Cir.
1985). Otherwise, the writ could “be used as a substitute for
the regular appeals process.” Cheney, 542 U.S. at 380–81.
Chief Justice Waite summed it up well: “The general
principle which governs proceedings by mandamus is, that
whatever can be done without the employment of that
extraordinary remedy, may not be done with it.” Ex parte
Rowland, 104 U.S. 604, 617 (1881).
Mandamus is inappropriate in the presence of an obvious
means of review: direct appeal from final judgment. See
13
Roche, 319 U.S. at 27–28 (“Ordinarily mandamus may not be
resorted to as a mode of review where a statutory method of
appeal has been prescribed or to review an appealable
decision of record.”); Nat’l Right to Work Legal Def. v.
Richey, 510 F.2d 1239, 1242 (D.C. Cir. 1975) (mandamus
unavailable when “review of the . . . question will be fully
available on appeal from a final judgment”); see also
Goldsmith, 526 U.S. at 537 & n.11 (suggesting that CAAF
could not issue mandamus due to availability of ordinary
direct appeal). Here, for instance, the 2009 MCA empowers
this Court to review all “matters of law” once a military
commission issues a final judgment and both the convening
authority and the CMCR review it. See 10 U.S.C. § 950g(a),
(d). The Government “acknowledge[s]” that this provision
will allow us to consider Nashiri’s constitutional challenges
on direct appeal. Oral Arg. Recording 29:37–30:24; see also
id. at 19:58–21:10; Resp’t’s Br. 13. Given the availability of
ordinary appellate review, Nashiri must identify some
“irreparable” injury that will go unredressed if he does not
secure mandamus relief. Banks v. Office of Senate Sergeant-
At-Arms & Doorkeeper of U.S. Senate, 471 F.3d 1341, 1350
(D.C. Cir. 2006); Nat’l Ass’n of Criminal Def. Lawyers, Inc.
v. DOJ (NACDL), 182 F.3d 981, 987 (D.C. Cir. 1999). He
makes two attempts to do so. Both fail.
First, Nashiri draws an analogy to judicial
disqualification, pointing out that this Court has entertained
mandamus petitions when a judicial officer declines to recuse
himself. See, e.g., In re Kempthorne, 449 F.3d 1265, 1269
(D.C. Cir. 2006); In re Brooks, 383 F.3d 1036, 1041 (D.C.
Cir. 2004); Cobell v. Norton, 334 F.3d 1128, 1139 (D.C. Cir.
2003). But Nashiri misses the “irreparable” injury that
justified mandamus in those cases: the existence of actual or
apparent bias. Cobell, 334 F.3d 1139. With actual bias,
ordinary appellate review is insufficient because it is too
14
difficult to detect all of the ways that bias can influence a
proceeding. See id. (“[I]f prejudice exist[ed], it has worked
its evil and a judgment of it in a reviewing tribunal is
precarious. It goes there fortified by presumptions, and
nothing can be more elusive of estimate or decision than a
disposition of a mind in which there is a personal ingredient.”
(quoting Berger v. United States, 255 U.S. 22, 36 (1921)).
With apparent bias, ordinary appellate review fails to restore
“public confidence in the integrity of the judicial process,”
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
860 (1988)—confidence that is irreparably dampened once “a
case is allowed to proceed before a judge who appears to be
tainted.” In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d
Cir. 1992); accord In re United States, 666 F.2d 690, 694 (1st
Cir. 1981) (“Public confidence in the courts requires that
[bias] question[s] be disposed of at the earliest possible
opportunity.” (alterations omitted)). Nashiri does not allege
that the military judges on the CMCR are biased against
him—in fact or apparently. And our recusal cases do not
support his petition. See Cobell, 334 F.3d at 1139 (“A case
involving a motion for disqualification is clearly
distinguishable from those where a party alleges an error of
law that may be fully addressed and remedied on appeal.”
(quoting In re United States, 666 F.2d at 694 (ellipsis
omitted))).
Nashiri reads our precedent differently. He contends
that, in addition to bias, our recusal cases recognize another
form of irreparable injury: a violation of the separation of
powers. He cites Cobell, 334 F.3d at 1141, for this
proposition. Yet, apart from bias, the irreparable injury we
identified in Cobell was not an abstract concern with the
separation of powers but rather the risk of “interference with
the internal deliberations of a Department of the Government
of the United States.” Id. at 1140–43. There, a court monitor
15
was attending internal Department of Interior (DOI) meetings
and interfering with the agency’s ability to comply with a
court order. See id. at 1134–35, 1141–43. We put a stop to it,
via mandamus, because “the Court Monitor’s duties were so
wide-ranging as to have a potentially significant effect upon
the DOI’s deliberative process.” Id. at 1145 n.*. Nashiri has
identified no such immediate or ongoing harm from the
CMCR’s alleged constitutional defects. See United States v.
Cisneros, 169 F.3d 763, 769 (D.C. Cir. 1999) (“Most
separation-of-powers claims are clearly not in th[e] category
[of] . . . a right not to be tried.”). His purported injury—
conviction of one of the charged offenses—has yet to occur.
Indeed, his separation-of-powers claims are, at bottom, a
challenge to the constitutionality of a provision of the 2009
MCA. See Pet’r’s Br. 23 (asking this Court “to strike down
10 U.S.C. § 950f(b)(2)”). As we held in Cisneros, such
claims are “fully reviewable on appeal should the defendant
be convicted.” 169 F.3d at 769; see also id. at 770–71 (“[I]f
there is merit to [the defendant’s] claim about . . .
infringement on the President’s (and the Senate’s)
[constitutional authority], . . . there will be time enough in an
appeal from the final judgment to vindicate the separation of
powers.”). 6 Specifically, if Nashiri is convicted, the
6
Cisneros was technically a case about the collateral-order
doctrine, not mandamus. See 169 F.3d at 767. Nevertheless, it is
directly relevant here because the decision turned on the
“effectively unreviewable on appeal” requirement of the collateral-
order doctrine, id. at 767–68 (citing Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978)), which is functionally identical to the
no-other-adequate-means requirement of mandamus. See
Papandreou, 139 F.3d at 250 (“[M]andamus’s ‘no other adequate
means’ requirement tracks [the collateral order doctrine’s] bar on
issues effectively reviewable on ordinary appeal.”); see also Belize
Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 730 (D.C. Cir.
16
convening authority and the CMCR affirm that conviction,
Nashiri appeals to this Court and convinces us his
constitutional arguments are correct, we can then vacate the
CMCR’s decision. See Ryder v. United States, 515 U.S. 177,
187–88 (1995) (explaining that, on final-judgment review,
CAAF should vacate CCA decision if its judges were
appointed in violation of Appointments Clause). Vacatur,
even at the appeal-from-final-judgment stage, would fully
vindicate Nashiri’s “right[s]” and “the President’s [and] the
Senate’s constitutional powers.” Cisneros, 169 F.3d at 769;
see also Van Cauwenberghe v. Biard, 486 U.S. 517, 527
(1988) (“the right not to be subject to a binding judgment may
be effectively vindicated following final judgment”).
Second, Nashiri contends that, absent mandamus relief,
he will suffer irreparable injury in the form of “the sui generis
harms associated with defending against capital charges.”
Pet’r’s Br. 13 (quotation marks omitted). He, in effect, wants
us to create a “death penalty” exception to the traditional rules
of mandamus. We decline the invitation. Such an exception
would contradict the bedrock principle of mandamus
jurisprudence that the burdens of litigation are normally not a
sufficient basis for issuing the writ. See Parr v. United States,
351 U.S. 513, 519–20 (1956) (finality requirements assume
“the [defendant] will have to hazard a trial . . . before he can
get a review” and “bear[] the discomfiture and cost of a
prosecution”); Roche, 319 U.S. at 30 (“[A criminal t]rial may
be of several months’ duration and may be correspondingly
costly and inconvenient. But that inconvenience is one which
we must take it Congress contemplated in providing that only
final judgments should be reviewable.”); see also Bankers
Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)
2012) (“This court has acknowledged the similarities between the
requirements for mandamus and collateral order review.”).
17
(“[E]xtraordinary writs cannot be used as substitutes for
appeals, even though hardship may result from delay and
perhaps unnecessary trial.” (citations omitted)).
Granted, in United States v. Harper, the Ninth Circuit
relied on the “substantial hardship” of a capital trial to support
its decision to issue a writ of mandamus. 729 F.2d 1216,
1222–23 (9th Cir. 1984). But the constitutionality of the
death penalty was the subject of the mandamus petition in that
case. Specifically, the Harper court used mandamus to strike
down the death-penalty provision of the Espionage Act. See
id. at 1226. Here, however, Nashiri challenges the
composition of an intermediate appellate tribunal. We fail to
see how granting his petition would spare him the burdens of
capital prosecution. Even if the military judges were
disqualified and an all-civilian panel of the CMCR affirmed
the dismissal of the M/V Limburg charges, Nashiri has yet to
even begin defending against the capital charges stemming
from the bombing of the U.S.S. Cole and the attempted
bombing of the U.S.S. The Sullivans. Thus, capital
prosecution is inevitable for Nashiri, with or without
mandamus. Harper is therefore inapposite.
Finally, Nashiri contends that, even absent irreparable
harm, we should exercise our mandamus power to resolve the
constitutional status of military judges on the CMCR—a pure
question of law that could affect many cases. In other words,
he wants us to use the writ in an “advisory” capacity. See
generally 16 WRIGHT & MILLER § 3934.1. Whatever the
continued legitimacy of advisory mandamus, see First Nat’l
Bank of Waukesha v. Warren, 796 F.2d 999, 1004 (7th Cir.
1986) (“Although the [Supreme] Court has not yet erected the
tombstone, it has ordered flowers.”), our past willingness to
use the writ in that capacity “cannot be read expansively.”
United States v. Hubbard, 650 F.2d 293, 309–10 n.62 (D.C.
18
Cir. 1980); see also Banks, 471 F.3d at 1350 (“So reluctant
are we to consider [advisory] mandamus relief that even
where we have been presented really extraordinary cases, we
are careful to caution against indiscriminate mandamus
review.” (quotation marks omitted)). Even if we were
willing, we are unable to use advisory mandamus here
because it would circumvent the no-other-adequate-means
requirement. See Republic of Venezuela v. Philip Morris Inc.,
287 F.3d 192, 198 (D.C. Cir. 2002) (“[N]o writ of
mandamus—whether denominated ‘advisory,’ ‘supervisory,’
or otherwise—will issue unless the petitioner shows . . . that
[he] has no other adequate means of redress.”); see also
NACDL, 182 F.3d at 987 (“In no event . . . could clear error
alone support the issuance of a writ of mandamus” when the
error “could be corrected on appeal without irreparable
harm”).
Additionally, the use of advisory mandamus in this case
would conflict with the constitutional avoidance doctrine, a
“time-honored practice of judicial restraint.” Cisneros, 169
F.3d at 768. Nashiri’s petition presents two constitutional
questions of first impression and “[c]ourts do not reach out to
decide such questions.” Pub. Citizen Health Research Grp. v.
Tyson, 796 F.2d 1479, 1507 (D.C. Cir. 1986). Because
Nashiri may ultimately be acquitted of the charged offenses,
we may never need to resolve his constitutional challenges to
the 2009 MCA. We should plainly not enter the fray now.
See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.
439, 445 (1988) (“A fundamental and longstanding principle
of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of
deciding them.”).
To recap, we hold that Nashiri is not entitled to
mandamus relief because this Court can consider his
19
Appointments Clause and Commander-in-Chief Clause
challenges on direct appeal, after the military commission
renders a final judgment and the convening authority and the
CMCR review it.
2.
Nor can Nashiri demonstrate a “clear and indisputable”
right to the writ. Cheney, 542 U.S. at 381. Given its
“exceptional” nature, we cannot use mandamus to remedy
anything less than a “clear abuse of discretion or usurpation
of judicial power.” Bankers Life, 346 U.S. at 383 (quotation
mark omitted). Otherwise, “every interlocutory order which
is wrong might be reviewed under the All Writs Act” and
“[t]he office of a writ of mandamus would be enlarged to
actually control the decision of the trial court rather than used
in its traditional function of confining a court to its prescribed
jurisdiction.” Id.With these principles in mind, only Nashiri’s
Appointments Clause challenge gives us pause. The Clause
requires “all . . . Officers of the United States” to be
appointed by the President “by and with the Advice and
Consent of the Senate.” U.S. CONST. art. II, § 2, cl. 2. This
requirement is subject to an Excepting Clause that allows the
Congress to vest the appointment of “inferior” officers in “the
Heads of Departments.” Id. As noted supra, military judges
are “assigned” to the CMCR by the Secretary of Defense, 10
U.S.C. § 950f(b)(2)—the “Head[]” of the Department of
Defense, see Burnap v. United States, 252 U.S. 512, 515
(1920) (“The term ‘head of a department’ means . . . the
Secretary in charge of a great division of the executive branch
of the government, like the State, Treasury, and War, who is a
member of the Cabinet.”). Nashiri argues, however, that
CMCR judges are “principal,” rather than “inferior,” officers
20
and are therefore ineligible for the Excepting Clause. See
Morrison v. Olson, 487 U.S. 654, 670–71 (1988).
This Court has not addressed whether CMCR judges are
principal or inferior officers. In Edmond v. United States, 520
U.S. 651 (1997), the Supreme Court considered a close
analog: the judges who serve on the CCAs. The Edmond
Court acknowledged that CCA judges enjoy extended tenure,
have broad jurisdiction and “exercis[e] significant authority
on behalf of the United States.” Id. at 661–62. It
nevertheless concluded that CCA judges are inferior officers
because their work is extensively supervised. See id. at 666.
According to the Court:
Generally speaking, the term “inferior officer”
connotes a relationship with some higher ranking
officer or officers below the President: Whether one
is an “inferior” officer depends on whether he has a
superior. . . . “[I]nferior officers” are officers whose
work is directed and supervised at some level by
others who were appointed by Presidential
nomination with the advice and consent of the
Senate.
Id. at 662–63. CCA judges are supervised by two entities: the
Judge Advocates General and the CAAF. Id. at 664. The
Judge Advocates General “prescribe uniform rules of
procedure” for the CCAs; “meet periodically . . . to formulate
policies and procedure in regard to review of court-martial
cases”; and “may . . . remove a [CCA] judge from his judicial
assignment without cause” so long as the removal is not
motivated by an “attempt to influence . . . the outcome of
individual proceedings.” Id. The CAAF reviews the
decisions of the CCAs and can reverse them for errors of law.
Id. at 664–65 (citing 10 U.S.C. § 867).
21
CMCR judges are similar to CCA judges in several
respects—a similarity the Congress no doubt intended, see 10
U.S.C. § 948b(c) (“The procedures for military commissions
set forth in this chapter are based upon the procedures for trial
by general courts-martial . . . .”). For example, like the Judge
Advocates General, the Secretary of Defense supervises the
CMCR by promulgating its procedures, id. § 950f(c), and he
can also remove its military judges, id. § 949b(b)(4). Further,
this Court reviews the CMCR’s decisions under a review
provision virtually identical to the CAAF’s. See id. § 867(c).
The judges of this Court are, of course, “appointed by
Presidential nomination with the advice and consent of the
Senate.” Edmond, 520 U.S. at 663.
Despite these similarities, however, there are key
differences between CMCR judges and their CCA
counterparts. While the Judge Advocates General can
remove CCA judges without cause, the Defense Secretary can
remove military judges from the CMCR for “good cause” or
“military necessity” only. 10 U.S.C. § 949b(b)(4). Because
removal is “a powerful tool for control,” Edmond, 520 U.S. at
664, the added insulation of CMCR judges is constitutionally
significant. Additionally, the Supreme Court made a point in
Edmond to emphasize that the CAAF is “another Executive
Branch entity.” Id. at 664 & n.2 (emphasis added). The
CMCR’s decisions, by contrast, “are appealable only to [a]
court[] of the Third Branch,” id. at 666—namely, this Court.
10 U.S.C. § 950g(a).
The key question, then, is whether the CMCR’s variation
on the CCA model converts its military judges from inferior
to principal officers. We faced a similar issue in
Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684
F.3d 1332 (D.C. Cir. 2012). There, we considered an
Appointments Clause challenge to the Copyright Royalty
22
Judges (CRJs). The Copyright Royalty Board (Board) sets
the terms and conditions of copyright licensing agreements by
conducting ratemaking proceedings. See id. at 1334–35.
CRJs are appointed by the Librarian of Congress, 17 U.S.C.
§ 801(a), and can be removed for misconduct or neglect of
duty, see id. § 802(i). The Board’s rate determinations are
reviewed by this Court. Id. § 803(d)(1). We concluded in
Intercollegiate that CRJs are principal officers. See 684 F.3d
at 1340. The CRJs’ for-cause removal protection is not
“generally consistent with the status of an inferior officer.”
Id. And the fact that the Board’s rate determinations are
reviewed by this Court rather than by an Executive Branch
body means that “CRJs issue decisions that are final for the
executive branch.” Id. Although the Librarian “approv[es]
the CRJs’ procedural regulations,” id. at 1338 (citing 17
U.S.C. § 803(b)(6)), this limited supervision does not render
the CRJs inferior officers because the Librarian does not
“play an influential role in the[ir] substantive decisions.” Id.Still, CMCR military judges are not entirely like the
CRJs in Intercollegiate. Most significantly, the Defense
Secretary has broader authority to remove military judges
from the CMCR than the Librarian of Congress has vis-à-vis
the CRJs. The Secretary can remove a military judge either
for good cause or “military necessity.” 10 U.S.C.
§ 949b(b)(4). This additional removal authority is non-trivial;
we would likely give the Executive Branch substantial
discretion to determine what constitutes military necessity.
Cf. Martin v. Mott, 25 U.S. 19, 29–30 (1827) (“[T]he
authority to decide whether [an] exigency [justifying the
exercise of military power] has arisen, belongs exclusively to
the President, and . . . his decision is conclusive upon all other
persons.”); see also Orloff v. Willoughby, 345 U.S. 83, 93–94
(1953) (“[J]udges are not given the task of running the Army
23
. . . . [W]e have found no case where this Court has assumed
to revise duty orders as to one lawfully in the service.”).
In short, neither the CCAs (Edmond) nor the Copyright
Royalty Board (Intercollegiate) is a perfect analog of the
CMCR. This is unsurprising, as “[t]he line between ‘inferior’
and ‘principal’ officers” is “far from clear” and highly
contextual. Morrison, 487 U.S. at 671. More importantly,
even if we agreed with Nashiri that military CMCR judges are
principal officers, our analysis could not end there. As
mentioned earlier, the Defense Secretary can assign only
“commissioned” military officers to the CMCR. 10 U.S.C.
§ 950f(b)(2). To become a commissioned military officer, an
individual must be nominated by the President with the
advice and consent of the Senate, id. § 531(a) 7—precisely the
procedure contemplated by the Appointments Clause. The
question, then, is whether the Constitution requires
commissioned military officers to obtain an additional
appointment before they can serve on the CMCR.
The Supreme Court answered this question in the
negative in Weiss v. United States, 510 U.S. 163 (1994). That
7
To be specific, only high-ranking commissioned military
officers are President-nominated and Senate-confirmed. See 10
U.S.C. § 531(a)(2). The President alone can appoint officers to the
grades of second lieutenant, first lieutenant and captain (or, in naval
terminology, ensign, lieutenant (junior grade) and lieutenant). Id.§ 531(a)(1). The military judges on Nashiri’s CMCR panel—
Colonel Eric Krauss, USA, and Lieutenant Colonel Jeremy S.
Weber, USAF—are both high-ranking officers who were
nominated by the President and confirmed by the Senate. See 157
Cong. Rec. S7389–90 (daily ed. Nov. 10, 2011) (Krauss); 160
Cong. Rec. S5311 (daily ed. July 31, 2014) (Weber).
24
case involved CCA 8 judges—who, like CMCR judges, are
assigned to their respective courts but must already be
commissioned military officers. 10 U.S.C. § 866(a).
According to Weiss, CCA judges need no additional
appointment for two reasons. First, the Court found no
evidence that the Congress was trying to circumvent the
Appointments Clause by allowing CCA judges to be assigned
without a second appointment. See 510 U.S. at 173–74. The
Congress neither attempted to add responsibilities to an
existing office, id. at 174 (distinguishing Shoemaker v. United
States, 147 U.S. 282, 300–01 (1893)), nor tried to “diffus[e]”
the appointment power, id. Second, the duties of
commissioned military officers are “germane” to the duties of
military judges. See id. at 174–76. As the Court explained,
“all military officers . . . play a role in the operation of the
military justice system” by disciplining subordinates, serving
on courts martial and reviewing court-martial sentences. Id.
at 175. For these reasons, the Court unanimously held that
commissioned military officers can serve as CCA judges
without an additional appointment. Id. at 176.
Weiss is more complicated, however, than the Court’s
unanimity might ordinarily suggest. Notably, the Court
declined to hold that “germaneness” is required by the
Appointments Clause; instead, it “assume[d], arguendo, that
the principle of ‘germaneness’ applies.” Id. at 174. Justice
Scalia, joined by Justice Thomas, wrote separately to explain
why they believe germaneness is constitutionally required.
8
When Weiss was decided, the CCAs were the “Courts of
Military Review” and the CAAF was the “Court of Military
Appeals.” The Congress renamed these courts in 1995. See
National Defense Authorization Act for Fiscal Year 1995, Pub. L.
No. 103-337, § 924, 108 Stat. 2663, 2831. For clarity, we use their
current names.
25
See id. at 196 (Scalia, J., concurring in part and concurring in
judgment) (“[T]aking on . . . nongermane duties . . . would
amount to assuming a new ‘Offic[e]’ within the meaning of
Article II, and the appointment to that office would have to
comply with the strictures of Article II.”). But the majority
opinion found it unnecessary to decide that question.
Additionally, Justice Souter wrote separately to explain
why he thinks CCA judges are “inferior officers” under the
Appointments Clause. Id. at 182 (Souter, J., concurring).
Their inferior-officer status was important to Justice Souter
because it meant that the assignment of commissioned
military officers to the CCAs was inferior-to-inferior, not
inferior-to-principal. Id. at 190. For Justice Souter, an
inferior-to-principal assignment—without a second
Presidential nomination and Senate confirmation—“would
raise a serious Appointments Clause problem,” id. at 191,
because inferior-to-principal assignments would amount to an
“abdication” of both the President’s and the Senate’s
contemplated roles under the Appointments Clause. Id. at
189. According to Justice Souter, “[i]t cannot seriously be
contended that in confirming the literally tens of thousands of
military officers each year the Senate would, or even could,
adequately focus on the remote possibility that a small
number of them would eventually serve as military judges.”
Id. at 190–91. Justices Scalia and Thomas, for their part,
noted that the issues presented by inferior-to-principal
assignments are “complex.” See id. at 196 n.* (Scalia, J.,
concurring).
Nevertheless, the majority opinion in Weiss did not
discuss whether military judges are principal officers. Nor
did the Court suggest that the inferior-versus-principal
distinction played a role in its constitutional analysis. But
neither did Weiss hold that an inferior-to-principal assignment
26
without a separate appointment is permissible. After
Edmond, we know that CCA judges are inferior officers and,
thus, Weiss dealt only with an inferior-to-inferior assignment.
See Edmond, 520 U.S. at 666.
* * * *
As the foregoing discussion demonstrates, Nashiri’s
Appointments Clause challenge raises several questions of
first impression. Are CMCR military judges principal or
inferior officers? If they are principal officers, does their
initial appointment to be commissioned military officers
satisfy the Appointments Clause? Likewise, what role, if any,
does “germaneness” play in the constitutional analysis? Does
the Appointments Clause require germaneness for inferior-to-
inferior assignments? If not, would germaneness nonetheless
cure any Appointments Clause question with an inferior-to-
principal assignment? Are the duties of a CMCR military
judge germane to the duties of a commissioned military
officer? These are but a few of the questions we would
confront if we followed Nashiri down the rabbit hole.
We do not resolve these open questions today. What
matters for Nashiri’s petition is that they are just that—open.
Legal aporias are the antithesis of the “clear and indisputable”
right needed for mandamus relief. See NetCoalition v. SEC,
715 F.3d 342, 354 (D.C. Cir. 2013) (right to mandamus not
clear and indisputable in absence of “bind[ing]” precedent);
Republic of Venezuela, 287 F.3d at 199 (petitioners did “not
come close” to showing clear and indisputable right because
they “identif[ied] no precedent of this court or of the Supreme
Court” on point). Even if we ultimately agreed with Nashiri
on the merits, mandamus would not lie because the answer
was hardly “clear” ex ante. See In re Kellogg Brown & Root,
Inc., 756 F.3d 754, 762 (D.C. Cir. 2014) (“An erroneous
27
district court ruling on an . . . issue by itself does not justify
mandamus. The error has to be clear.”).
There may be another reason to pump our judicial brakes.
Once this opinion issues, the President and the Senate could
decide to put to rest any Appointments Clause questions
regarding the CMCR’s military judges. They could do so by
re-nominating and re-confirming the military judges to be
CMCR judges. Taking these steps—whether or not they are
constitutionally required—would answer any Appointments
Clause challenge to the CMCR.
For the foregoing reasons, Nashiri’s petition for a writ of
mandamus and prohibition is
Denied.