In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF has already granted review of eight trailer cases, and more grants are sure to follow.

Oral argument in Dalmazzi is scheduled for Wednesday, December 7, 2016. The appellant’s brief is available here.

When CAAF granted review it specifically invited the Army, Coast Guard, and Navy-Marine Corps appellate defense and Government divisions to file amicus curiae briefs in the case. CAAF hasn’t (yet) posted any amicus briefs on its website, however a reader forwarded this amicus brief from the Military Commissions Defense Organization offered in support of neither party. The brief concludes:

The USCMCR is an Article I court of record whose judges are principal officers. The only question here is what effect should be given to the appointment of five military officers to be USCMCR judges pursuant to §950f(b)(3). If these appointments are construed to have validly elevated the individuals to the position of USCMCR Judge, then they automatically resigned their military commissions by operation of law and ceased to be eligible to perform military duties. Alternatively, if the appointments are construed as ab initio void, then they continued in their same rank and grade and remained eligible to perform their assigned military duties.

Br. at 20-21.

Yesterday, in this order, CAAF accepted the brief and granted the Military Commissions Defense Organization 10 minutes of oral argument.

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