Recent Supreme Court decisions suggest that courts may increasingly find fault with congressional statutes that shield agency adjudicators from presidential control. In United States v. Arthrex, 141 S. Ct. 1970 (2021), for example, the Supreme Court held that administrative patent judges were not properly appointed. Because they were issuing final decisions on behalf of the executive branch, the patent judges were principal officers under the Appointments Clause and required presidential appointment with Senate confirmation. The Supreme Court’s remedy was to make the patent judges’ decisions subject to agency-head review so that the judges were no longer principal officers and other forms of appointment became constitutionally acceptable.
In practice, not many administrative adjudicators issue final decisions that lack agency-head review. The Convening Authority—the person who convenes “military commissions” to try unlawful enemy combatants held in detention at Guantanamo Bay—is an exception. Although the Secretary of Defense can remove the Convening Authority, some of the officer’s final decisions are not reviewable by the Secretary or any other executive officer. In my Essay, Supervising Guantanamo Tribunals: Appointments Clause Challenges After Arthrex, 90 Geo. Wash. L. Rev 1265 (2022), I analyze this unusual system of executive oversight created by the Military Commissions Act (MCA) and conclude that convictions approved by the current Convening Authority are vulnerable to Appointments Clause challenges.
Congress drafted the 2006 MCA after the Supreme Court, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), invalidated the previous military commission system that tried “enemy combatants.” The MCA authorized the trial of “alien unlawful enemy combatants” by military commissions housed in the Department of Defense. These military commissions can be convened by the Secretary of Defense or any “officer or official” designated by the Secretary. 10 U.S.C. § 948h. In other words, the Secretary can delegate the authority to convene military commissions to the Convening Authority.
The Convening Authority’s duties span far and wide. The Convening Authority appoints the head of a military commission as well as the jurors. 10 U.S.C. § 948i. The Convening Authority oversees the plea agreement process and can grant prosecutorial immunity. See U.S. Dep’t of Def., Manual for Military Commissions. The Convening Authority refers charges, if there are any, to a military commission. Id. During trial, the Convening Authority can dismiss charges, and after trial, the officer has the “sole discretion” to set aside a guilty finding or commute a sentence. 10 U.S.C. § 950b(c). In short, the Convening Authority oversees the entire military commissions process. This significant authority indicates that the Convening Authority is an “officer” and not a mere “employee,” see Freytag v. Comm’r, 501 U.S. 868, 880–82 (1991), but it is more difficult to discern if the Convening Authority is a principal or inferior officer.
The Convening Authority wields significant influence over the military commissions, but the officer also faces a dual system of oversight by the Secretary of Defense and the Court of Military Commission Review. The Secretary has two potent tools to oversee the Convening Authority: removal and regulation. Although the exact limits of the Secretary’s removal powers are unresolved, the MCA’s silence regarding removal indicates that the power to remove is likely incidental to the power to designate. Cf. Kalaris v. Donovan, 697 F.2d 376, 401 (D.C. Cir. 1983). Congress also gave the Secretary the express power to prescribe procedures that govern the military commissions. 10 U.S.C. § 949a(a).
Some of the Convening Authority’s final decisions are reviewed by the Court of Military Commission Review, an executive tribunal made up of appellate military judges who are appointed by the president or the Secretary and confirmed by the Senate. Although the accused can appeal a guilty finding to the Court of Military Commission Review, the Convening Authority has the sole discretion, without the Court of Military Commission Review’s oversight, to (1) approve a plea agreement, (2) overturn a verdict, or (3) commute a sentence. 10 U.S.C. § 949i–950i(d). All of this suggests the Convening Authority may be a principal officer. But the Secretary, not the president, appoints the Convening Authority, and there is no Senate confirmation.
The conclusion that the Convening Authority is an improperly appointed principal officer is supported by a broad interpretation of the majority’s reasoning in Arthrex. Chief Justice Roberts noted that the criteria applied in Arthrex are not the only ones that courts can use to delineate between principal and inferior officers. But he implied that the criteria applied in Arthrex may need to be used to distinguish between officers in the context of administrative adjudication (as opposed to other administrative decisionmakers, such as those issuing legislative rules). See 141 S. Ct. at 1985–86. But Arthrex left many questions unanswered. For example, did Arthrex strengthen the role of principal-officer review or simply end a tradition of patent exceptionalism?
If Arthrex did not strengthen principal-officer review of final decisions, then the Convening Authority’s appointment complies with the Appointments Clause because of the Secretary’s removal power. In Arthrex, the agency head could not remove administrative patent judges without cause, but the Secretary can likely remove the Convening Authority at will. The system of supervision of the Convening Authority created by the MCA falls squarely in the middle of the systems of supervision at issue in Arthrex and in Edmond v. United States, 520 U.S. 651 (1997), another leading case on the delineation between principal and inferior officers in adjudicatory contexts.
Even if the method of appointing the Convening Authority is unconstitutional, defendants who raise Appointments Clause challenges may have trouble proceeding to the merits. It is likely that the accused cannot trace an injury to the Convening Authority’s potentially unlawful exercise of power because the three unreviewable decisions that the Convening Authority can make are all adverse to the government and beneficial to the accused.
The accused could try to establish standing through two avenues. First, the accused could argue that an injury is indeed “fairly traceable” to the Convening Authority’s unlawful exercise of power. See Allen v. Wright, 468 U.S. 737, 751 (1984). For example, if the Convening Authority had appropriate political supervision, then the defendant may have been offered a better plea bargain or a reduced sentence. But this is highly speculative, and the Supreme Court regularly denies requests for standing when alleged injuries are too speculative. See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411 (2013).
Second, the accused could try to push for “standing-through-inseverability.” California v. Texas, 141 S. Ct. 2104, 2122 (2021) (Thomas, J., concurring). In his dissent in that case, Justice Alito argued that plaintiffs should be able to obtain standing by claiming an injury is traceable to unlawful conduct because it is inseverable from another statutory provision that is causing them injury. Id. at 2130 (Alito, J., dissenting). The accused could argue that the Convening Authority’s decision-making authority is inseverable from the remainder of the MCA. For example, the accused may be unwilling to negotiate a plea agreement with a party who does not have the final say, and the military commissions depend on an efficient plea agreement system. However, six Justices signaled a lack of support for such relaxed tracing requirements in California v. Texas, meaning establishing standing would be an uphill battle for any defendant.
Until there is finality regarding the Convening Authority’s officer status under the Appointments Clause, defendants are likely to continue raising Appointments Clause challenges, causing setbacks for the military commissions that have mostly failed to secure convictions. At least two defendants have already raised Appointments Clause challenges to the MCA, with one specifically challenging the status of the Convening Authority. Al Bahlul v. United States, 967 F.3d 858 (D.C. Cir. 2020); In re Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015). To put to rest any future Appointments Clause issues after Arthrex, I argue in my Essay that (1) the president should nominate and the Senate should confirm all Convening Authorities moving forward, or (2) the Congress should amend the MCA to provide the Secretary of Defense with the authority to review decisions and render them final.
