Scholarship Saturday: Questions regarding military judicial independence in the wake of Al-Nashiri

By Isaac Kennen

Scholarship Editor

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 PostNew York TimesBloombergFox 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.

Originally published on April 20, 2019 on Preserved by, here. In the CAAFlog archive, without attribution, here.