Notice & Comment

Supervising the Guantanamo Tribunal Supervisor after Arthrex, by Laura Stanley

The Supreme Court held in United States v. Arthrex that administrative patent judges’ decisions must be subject to agency-head review because they were not appointed as principal officers. In practice, and as Professor Chris Walker has explained, there are not many remaining administrative adjudicators who issue final decisions that lack agency-head review. But there are some. The Convening Authority—the person who convenes the “military commissions” to try unlawful enemy combatants for violations of the law of war—is such an outlier.

After the September 11 attacks, President George W. Bush set up military commissions to try non-citizens suspected of terrorist acts. The Supreme Court invalidated that system in Hamdan v. Rumsfeld and held that the military commission system needed to have rules as similar as possible to the military justice rules found in the Uniform Code of Military Justice.

In response, Congress passed the Military Commissions Act, which authorized the trial of “alien unlawful enemy combatants” by military commissions that are housed in the Department of Defense. Under the statute, military commissions can be convened by the Secretary of Defense or any official who the Secretary designates as the “Convening Authority.”

The Convening Authority has many responsibilities. The Convening Authority appoints the Chief Judge, who in turn selects the judges for trials, as well as the “members” who serve as jurors for the military commissions.  The Convening Authority approves plea agreements and can grant immunity from prosecution. During trial, the Convening Authority can dismiss charges before the findings are announced, and after trial, can set aside a guilty finding and reduce or commute a sentence. In short, the Convening Authority supervises the entire military commissions process.

The Military Commissions Act created an anomaly from the typical modes of administrative adjudication. In a new essay, forthcoming in The George Washington Law Review, I explore the exceptional system of oversight of the Convening Authority. Unlike the agency head at issue in Arthrex, the Secretary of Defense can remove the Convening Authority at will. Most of the Convening Authority’s decisions are reviewable by the Court of Military Commission Review, an executive tribunal of military judges who are appointed with Senate consent. But there are three significant decisions the Convening Authority makes that are not reviewable by a principal officer. The Convening Authority can (1) approve a plea agreement, (2) overturn a verdict, and (3) commute a sentence. Do these actions make the Convening Authority an improperly appointed principal officer under Arthrex?

In December 2020, the D.C. Circuit held that the Convening Authority is an inferior officer, but that decision predated Arthrex. As discussed repeatedly on this blog, Arthrex left an important issue unresolved: do decisions issued by administrative adjudicators who are not appointed as principal officers need to be subject to agency-head review? The Convening Authority’s status hinges on the answer to this question.

Cases challenging the appointment of the Convening Authority also have a standing twist. The three unreviewable decisions that the Convening Authority can make are beneficial to the accused and adverse to the government. Could a detainee trace an injury to the Convening Authority’s potentially unlawful exercise of power? A similar issue was presented in California v. Texas, and I make the case in the essay that the detainees likely cannot show an injury sufficient to confer standing.

Practically, Congress could avoid the issue by providing for agency-head review of all Convening Authority decisions, or the President and Senate could avoid the issue by nominating and confirming the officer. But more careful analysis of the tradeoffs of either reform, informed by experts in military commissions, would be beneficial. For example, in a recent post, Professors Rebecca Eisenberg and Nina Mendelson questioned whether political accountability for patent adjudicators is beneficial since the issues are unlikely to matter to voters. Are voters more likely to care about the Guantanamo tribunals, and does this suggest there would be a benefit to political accountability? The press cared enough to speculate about whether a recent Convening Authority was fired for exploring plea bargains. Does this suggest there is already sufficient accountability?

While this issue is of obvious interest to the national security community, it is also worthy of attention from administrative law scholars. As the field attempts to resolve post-Arthrex adjudication questions, learning about unique arrangements, like the military commissions, can help inform the tradeoffs involved in granting more or less decisional independence to adjudicators.

Laura Stanley is a policy analyst at the GW Regulatory Studies Center and a law student at The George Washington Law School, where she is an Articles Editor for The George Washington Law Review.

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