As covered on this blog, on April 16, 2019, the Court of Appeals for the District of Columbia Circuit issued its decision on a petition for a writ of mandamus in the case of In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri. The Circuit Court granted Al-Nishiri’s request to vacate all orders issued after November 19, 2015 by the former Air Force Chief Trial Judge—now a civilian immigration judgeVance Spath. The reason for that action was that Judge Spath issued those orders while he had a “concealed and disqualifying ethical conflict.” Opinion at 15. The saga has now drawn the attention of major news outlets – Washington Post, New York Times, Bloomberg, Fox News.

Digging into the details, the Circuit Court found that Judge Spath engaged in undisclosed negotiations for future employment with the Attorney General while simultaneously presiding over Al-Nishiri’s commission. That was a problem because not only was one of the Attorney General’s subordinates from the Department of Justice detailed to the prosecution team in Al-Nishiri, but the Circuit Court was also more generally concerned because “the Attorney General plays an important institutional role in military commissions.” Opinion at 21.

The Court found the conflict of interest to be “intolerable,” declaring:

Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label.

Opinion at 17.

Simply put, “a judge cannot have a prospective financial relationship with one side yet persuade the other that he can judge fairly in the case.”

Opinion at 19 (citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)).

While the Court’s decision in Al-Nashiri arises from the Guantanamo Bay military commissions, the rationale from the opinion naturally reverberates into the military court-martial system. If the mere possibility of a future employment relationship between Judge Spath and the Attorney General in Al-Nashiri was problematic, then the consummated relationship between every court-martial’s military judge and their respective Judge Advocate General—who appoints them, removes them, and controls their future assignments—is a particularly precarious arrangement. It is that situation that invites a deeper examination of whether military judges may properly be considered not only impartial, but also independent.

That examination must start with the United States’ treaty obligations. The United States is party to the International Covenant on Civil and Political Rights (ICCPR). Article 14 of that Treaty guarantees:

[E]veryone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

In its ratification statement to that treaty, the United States vowed to ensure that Article 14 was “implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein.” Nothing in that language purports to exclude the military jurisdiction from Article 14’s reach. Further, the ratification statement included a declaration that the United States “accepts the competence of the Human Rights Committee” regarding complaints that the United States has failed to fulfill its obligations under the treaty. Given that declaration of competence, it is prudent to consider what the United Nations Human Rights Committee has to say about Article 14. The Human Rights Committee has said much:

The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature.

General Comment No. 32 to Article 14 of the International Covenant on Civil and Political Rights ¶ 19 (July 27, 2007). Further, the Human Rights Committee has urged:

States should . . . adopt[] laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

The Human Rights Committee’s understanding of what is required for an independent judiciary under Article 14 of the ICCPR is not unique. The European Charter on the Statue for Judges, at paragraph 1.3, similarly states:

In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers[.]

Further, there is broad consensus that judicial independence depends on Executive Branch officers being absent from the process of selecting, appointing, controlling the career progression, or removing a judge. See Concluding Observations on the Congo, U.N. Human Rights Committee (April 25, 2000) ¶ 14; Concluding Observations on Liechtenstein, U.N. Human Rights Committee (August 12, 2004) ¶ 12; Concluding Observations on Tajikistan, U.N. Human Rights Committee (July 18, 2005) ¶ 17;  Concluding Observations on Honduras, U.N. Human Rights Committee (December 13, 2006) ¶ 16; Concluding Observations on Azerbaijan, U.N. Human Rights Committee (August 13, 2009) ¶ 12;  Concluding Observations on Kosovo (Serbia), U.N. Human Rights Committee (August 14, 2006) ¶ 20; Universal Charter of the Judge, Arts. 2, 7, 8, 9. Additionally, as this column noted in February, the propriety of having military trials presided over by judges subordinate to Executive Branch officers was a prominent complaint India made in oral argument before the International Court of Justice in its case against Pakistan. In it’s reply brief before the court, India called the practice a “manifest failing.”

Given the United States’s Article 14 obligations, guaranteeing the right to a trial before a judge who is independent of the Executive Branch to “all persons” tried in the Federal jurisdiction, it seems likely that if the Al-Nishiri standard were applied to trials by court-martial, a similar decision might result. Military judges are not appointed in a manner independent of the Executive Branch – they are appointed and serve at the pleasure of their respective Judge Advocates General using a process that is not standard across the services, and which often affords little to no oversight. Once appointed, military judges are far from being structurally independent of their Judge Advocates General. Indeed, Article 26(c) of the Uniform Code of Military Justice expressly requires military judges to be “assigned and directly responsible to the Judge Advocate General.”

This is all notable because the Circuit Court found the Attorney General’s specter in Al-Nishiri to be intolerable and his only ties to the case were through a detailed subordinate of a subordinate, his role in the creation of rules for the commissions, and his role in determining which agency would represent the government on appeal. In contrast, Judge Advocates General have those same sorts of “institutional” ties to courts-martial, and more. Under Article 6 of the Code, not only do the Judge Advocates General control the assignments of all prosecutors, they also control those of defense counsel. Further, Article 27 charges them with certifying the competence of those prosecutors and defense counsel. Entrenched even deeper into the fabric of their justice system than the Attorney General is in the commissions, Article 56(d) charges Judge Advocates General with the responsibility for determining whether to appeal a sentence on behalf of the prosecution. They are also tasked under Article 60a with taking “appropriate action” should the convening authority reduce, commute, or suspend a sentence. Additionally, they are empowered to certify cases for review the Court of Appeals for the Armed Forces by Article 67 – a power that observers have noted is seldom employed to aid defendants. If the relatively attenuated involvement of the Attorney General in Al-Nashiri vis-a-vie the military judge was “intolerable,” then the involvement of Judge Advocates General in courts-martial vis-a-vie their judicial subordinates may be even more so.

14 Responses to “Scholarship Saturday: Questions regarding military judicial independence in the wake of Al-Nashiri”

  1. USAFR JAG says:

    I am entirely on board with the bottom line, but it is an interesting take to focus upon the I law requirements.  It seems a bit ivory tower-ish, given that the US is disinclined to adjust to accommodate international norms.
    That said, there may be broader implications for administrative adjudications writ broadly.  Keep in mind that the CMs are administrative courts.  Just at TJAGs have an interest in the outcome of cases, so too do EEOC directors have an interest in the outcome of EEOC AJs’ recommended decisions, the MSPB in their ALJs’ decisions, and the AG in IJ’s decisions.  Although these latter groups may not have as much sway over promotions (given the merit systems principles and caps on GS grade), there are still financial / professional concerns vis a vis annual appraisals, monthly/quarterly/annual awards, etc. 
    So the question is does the Al-Nashiri get limited only to pursuing jobs, or should administrative hearing practitioners also be voir diring administrative adjudicators on how (if at all) outcomes get factored into an agency’s carrots/sticks for adjudicators?

  2. Anon2 says:

    Excellent post, Isaac. This is a call that the TJAGs, trial judiciaries, and trial defense communities ought to heed. 
     
    The TJAGs will not need to exert as much control over military judges if they select the “right” ones to begin with. I am not aware of any service that makes public their selection criteria for military judges, though I do believe (please correct me if I am wrong) that all military judge selections are subject to the personal approval of the TJAGs.
     
    One hopes that the selection of military judges is based primarily on excellence and ability in military justice. One suspects that it has much to do with identifying reliable allies in the Pentagon’s ongoing War against a Majority of Senators.
     
    Think what you will about MJIA, but the Pentagon ought to have learned by now that deck-stacking behavior ultimately works against self-interest. 

  3. A Random JAG says:

    Anon2,
    Actually, the Navy makes its judicial selection criteria public.  Look at JAGINST 5817.11, available at:
    https://www.jag.navy.mil/library/instructions.htm

  4. Anon2 says:

    Thanks, A Random JAG, and BZ to the Navy for doing this. 

  5. CDR X says:

    That’s the criteria for judicial *screening* but successfully screening to be a military judge doesn’t mean you’ll ever get selected to be one.  Navy judge advocates still get selected for judicial billets through the same “slating” process TJAG uses to select officers for SJA or CO billets.  Which screened officers ultimately get selected to serve in the judiciary is entirely within TJAG’s discretion.

  6. stewie says:

    It’s made like most other assignment decisions, a mixture of who’s favored, along with skill. A mix of merit and favoritism.

  7. A Random JAG says:

    CDR X,
     
    A fair point, just wanted to draw people’s attention to the instruction at least.  Since the judicial screening board itself is also not open to the public, I think it’s fair to say the process is not 100% transparent.  But hopefully the process provides some guidelines for the selection of judges that have the right acumen and temperament.

  8. TC says:

    I understand why the Al-Nashiri decision raises this issue.  But what is the actual concern here?  That judges will rule in favor of the government because they believe the TJAG cares about the outcome of individual cases/particular issues in individual cases?  As much as miljus is all-consuming to the practitioners, I don’t think the TJAG cares about particular case outcomes.  I think he just cares that we’re all doing our jobs properly.  Granted, I can see how in a case like Barry, had the issue of the TJAG’s involvement surfaced earlier, dq’ing all Navy judges would have been appropriate.  But as a standard issue in every case I don’t think there’s any reason to think judges aren’t acting completely impartially.

  9. Anon2 says:

    It would be a valuable public service to hear from more folks with insights into the realities of how TJAGs pick, punish, and reward judges. 

  10. Isaac Kennen says:

    USAFR JAG said:
     

    I am entirely on board with the bottom line, but it is an interesting take to focus upon the I law requirements.  It seems a bit ivory tower-ish, given that the US is disinclined to adjust to accommodate international norms.
    That said, there may be broader implications for administrative adjudications writ broadly.  Keep in mind that the CMs are administrative courts.  Just at TJAGs have an interest in the outcome of cases, so too do EEOC directors have an interest in the outcome of EEOC AJs’ recommended decisions, the MSPB in their ALJs’ decisions, and the AG in IJ’s decisions.

     
    Agreed, the Al-Nashiri Court acknowledged that its decision could have broader implications, but simultaneously sought to narrow the scope of its decision:
     

    [W]e hasten to add that none of the foregoing requires the Defense Deapartment to change the way it assigns military judges, or the Justice Department the way it hires immigration judges, or the CMCR the way it considers appeals. But this much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality[.] . . . It would seem, therefore, that some additional encouragement to more carefully examine possible grounds for disqualification would be especially appropriate under the circumstances.”

    Opinion at 28 (internal citations omitted).
     
    Further, there are portions of Al-Nashiri that could offer rationale for distinguishing the case from your run of the mill EOC, MSPB, or IJ adjudication:
     

    Two features of this case weigh especially heavily. 
    To begin with, we cannot forget that the government seeks to impose the ultimate penalty against Al-Nashiri. . . . In no proceeding is the need for an impartial judge more acute than one that may end in death.
    Moreover, . . . [a]lthough it was Spath who had the ultimate obligation to recuse himself, the judge was hardly alone in his lack of diligence. . . . Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet, in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself—failed to live up to that responsibility. And we cannot dismiss Spath’s lapse as a one-time aberration, as Al-Nashiri’s is not the first meritorious request for recusal that our court has considered with respect to military commission proceedings.

    Opinion at 27-28.
     
    In sum: Perhaps it can be posited that a commission differs from an EEOC/MSPB/IJ case because of the penalties the forum can adjudicate. A commission or a court-martial can imprison someone – they can even take life. Indeed, in courts-martial, the military judge is now presumed to be the sentencing authority, rather than having the members wield that discretion. Additionally, perhaps, commissions – and especially the Al-Nashiri commission – are different because the independence of the judiciary has been a subject of repeat failure, and a failure in which the government was complicit. 
     
    As for the focus on I law: First, the ICCPR has been ratified. It is therefore part of the fabric of our domestic law. Second, the Al-Nashiri Court, as quoted above, encouraged a more careful examination of disqualifying conditions with a view to “maintain[ing] the appearance of impartiality.” But, the Court did not treat that requirement of impartiality as being separate and distinct from the requirement of impartiality. Article 14 of the ICCPR requires an “independent and impartial tribunal established by law.” The Human Rights Commission – which the United States in its ratification statement declared to be competent to interpret the ICCPR – has made clear that mere impartiality, while necessary, is not alone enough to satisfy Article 14’s separate requirement for independence. 
     
    TC said:
     

    [A]s a standard issue in every case I don’t think there’s any reason to think judges aren’t acting completely impartially.

     
    Concur with that assertion. But, impartiality is not sufficient. Judges must also be independent.
     

  11. Brian Bouffard says:

    Judges must also be independent.

    And appear to be independent.

  12. Vulture says:

    Kind of, TC.  Maybe the TJAG isn’t compelling the outcome in each case.  But where the TJAG specifically sent Perkins to the CAAF by certification, it’s harder to make the argument they aren’t concerned about any case.  “Just doin my job.” is a common refrain of law enforcement in the course of what otherwise may be called intrusion.  So I’d recognize which team the TJAG belongs to; it’s not an impartial one.

  13. Charlie Dunlap says:

    Very thoughtful essay, but the Senate made it clear that the ICCPR is not self-executing. In fact the Senate said that its “advice and consent is subject to the following declarations:
    (1) That the United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing.” 
    In short, nothing in the ICCPR modifies in any way the UCMJ.
     

  14. Vulture says:

    Commander GTMO prison fired.  Sucks to be bald.