CAAF will hear oral argument in the Air Force case of United States v. Ortiz, No. 16-0671 (CAAFlog case page), on Tuesday, February 7, 2017, at 9:30 a.m. Three issues – one amended and another specified by CAAF – challenge the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR) in the CCA panel that reviewed the appellant’s case. An additional 85 cases are also pending before CAAF (my count as of Feb. 1) with similar issues:

I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

Amended Issue: II. Whether Judge Martin T. Mitchell’s Service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a principal officer on the United States Court of Military Commission Review.

Specified Issue: III. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President to the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(4)(c) and (d), authorizing reassignment or withdrawal of appellate military judges so appointed by the Secretary of Defense or his designee.

Ortiz is a replacement for United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which was resolved on mootness grounds but is now the subject of a petition for certiorari (discussed here).

The Military Commissions Act of 2009 established a new CMCR as an independent Article I court of record. See 10 U.S.C. § 950f(a). Judges are appointed to the CMCR by the President through the formal mechanism of the Appointments Clause. 10 U.S.C. §950f(b)(3). However, the Secretary of Defense may also assign “commissioned officers of armed forces” to serve as appellate judges on the CMCR. 10 U.S.C. § 950f(b)(2).

The Secretary of Defense assigned Air Force Colonel Martin T. Mitchell to the CMCR on October 20, 2014, and he was sworn in on October 28, 2014. Afterward, in 2015, in a decision on a petition for extraordinary relief that challenged the assignment of officers like Colonel Mitchell to the CMCR, the U.S. Court of Appeals for the District of Columbia Circuit suggested that any question about the status of such assigned judges could be resolved by their nomination and confirmation by the President. In re Al-Nashiri, 791 F.3d 71, 86 (D.C. Cir. 2015). So, on March 14, 2016, the President nominated Colonel Mitchell to be a judge on the CMCR. Other military officers who were similarly nominated include: Captain Donald C. King, U.S. Navy; Colonel Larss G. Celtnieks, U.S. Army; Colonel James W. Herring, U.S. Army; and Lieutenant Colonel Paulette V. Burton, U.S. Army. 162 CONG. REC. S 1473-74 (daily ed. Mar. 14, 2016). The Senate confirmed the nominations and the Judges were appointed.

These appointments are the basis for the issues in Ortiz.

The case seemingly offers a simple question of how many robes a single judge can wear, but the briefs present a complex web of statutory, constitutional, and caselaw considerations. I’m not going to summarize them here. With the questions already raised before the Supreme Court, however, I suspect that during Tuesday’s argument CAAF is going to try to find a straightforward (if not outright easy) way to resolve these cases.

Case Links:
AFCCA opinion
Blog post: CAAF picks a replacement for Dalmazzi
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Amicus Curiae Brief: Army Appellate Government Division
• Amicus Curiae Brief: Navy-Marine Corps Appellate Government Division
• Amicus Curiae Brief: Military Commissions Defense Organization (& Appendix)
Blog post: Argument preview

Disclosure: In my personal capacity I represent an appellant whose case is one of the 85 trailer cases with similar issues. 

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