This Wednesday at 9:30 a.m., a three-judge panel of the D.C. Circuit (Rogers, Tatel and Griffith, JJ.) will hold a rare August argument session to hear the latest petition for a writ of mandamus from the Guantánamo military commissions. The specific issue in In re Mohammad is whether one of the judges on the Court of Military Commission Review (CMCR), Judge Scott Silliman, should have recused from hearing an interlocutory appeal by the government in the 9/11 case because of statements he made prior to becoming a CMCR judge reflecting apparent bias against the 9/11 defendants.

But Mohammad is just one of a string of mandamus petitions arising out of the Guantánamo trials—which have generally raised structural questions like the one presented in Mohammad rather than trial-specific factual or legal issues. Indeed, Mohammad is the fourth such case to be argued before the D.C. Circuit in the past two years, and a fifth (also, unhelpfully, named In re Mohammad) may be right on its tail; just last week, a different D.C. Circuit panel (Millett, Pillard and Wilkins, JJ.) ordered the government to respond to that petition (which raises a different question about the eligibility of the CMCR judges who heard the interlocutory appeal in the 9/11 case) by the end of August, setting up a potential September argument.

The D.C. Circuit’s approach to these petitions, at least thus far, has been to (1) assert jurisdiction over them; (2) deny them because they’ve each presented merits questions of first impression; and (3) offer at least some hints as to how they think the merits questions should be resolved if and when they are reached. As I explain in the post that follows, this approach strikes me as deeply flawed for two different—and independent—reasons. First, it cannot be correct that mandamus relief is never available on a question of first impression, especially where, as in these cases, the writ is being sought to confine a lower court to the proper exercise of its jurisdiction. If it really is clear that the lower court acted without jurisdiction (perhaps, as in Mohammad, because of the participation of an ineligible judge), then mandamus should be available even if no court has previously so held on the same facts.

Second, and perhaps more importantly, by asserting jurisdiction and purporting to express a view on the merits without actually deciding those merits, the Court of Appeals is embracing a form of the “passive-aggressive virtues” that I’ve elsewhere suggested the Supreme Court has adopted in much of its post-September 11 jurisprudence in terrorism-related cases—and that’s not a good thing.

I. The Military Commission Mandamus Cases

The fountainhead for the current run of military commission mandamus cases was In re al-Nashiri (“al-Nashiri I”), which the D.C. Circuit decided in June 2015. In al-Nashiri I, the issue was whether the CMCR’s judges were “principal” Executive Branch officers for purposes of the Constitution’s Appointments Clause, and could therefore only be appointed by the President with the advice and consent of the Senate. (At that time, several CMCR judges had been “assigned” to the CMCR by the Secretary of Defense.) After holding that the Court of Appeals had jurisdiction to issue a writ of mandamus directed to the CMCR (a matter that had been in some dispute), Judge Henderson (writing for herself and Judges Rogers and Pillard) articulated the standard of review as follows:

We do not resolve these open questions today. What matters for Nashiri’s petition is that they are just that—open. Legal aporias are the antithesis of the “clear and indisputable” right needed for mandamus relief. See NetCoalition v. SEC, 715 F.3d 342, 354 (D.C. Cir. 2013) (right to mandamus not clear and indisputable in absence of “ bind[ing]” precedent); Republic of Venezuela, 287 F.3d at 199 (petitioners did “not come close” to showing clear and indisputable right because they “identif[ied] no precedent of this court or of the Supreme Court” on point). Even if we ultimately agreed with Nashiri on the merits, mandamus would not lie because the answer was hardly “clear” ex ante. See In re Kellogg, Brown & Root, Inc., 756 F.3d 754, 762 (D.C. Cir. 2014) (“[A]n erroneous district court ruling on an ... issue by itself does not justify mandamus. The error has to be clear.”).

Note the subtle but crucial distinction doing all of the work here: To be entitled to mandamus, a petitioner must show that his right to relief is “clear and indisputable.” That’s well settled in the D.C. Circuit (and everywhere else, for that matter). But the Court of Appeals then concludes (whether because it was bound by prior precedent or not) that a right to relief can only be “clear and indisputable” when it can be grounded in a binding prior precedent—much like the standard for showing a violation of clearly established law in post-conviction habeas cases or damages suits against government officers. Not surprisingly, no court had ever considered the constitutional status of CMCR judges, so Nashiri could not meet the D.C. Circuit’s mandamus burden.

But rather than conclude the matter there, the panel kept going:

Once this opinion issues, the President and the Senate could decide to put to rest any Appointments Clause questions regarding the CMCR’s military judges. They could do so by re-nominating and re-confirming the military judges to be CMCR judges. Taking these steps—whether or not they are constitutionally required—would answer any Appointments Clause challenge to the CMCR.

This wasn’t a holding, of course. But the Executive Branch did exactly that—responding to al-Nashiri I by formally nominating the military judges who had already been “assigned” to the CMCR for “appointment” by the President with the advice and consent of the Senate. Indeed, every judge named to the CMCR since al-Nashiri I has been so nominated and confirmed.

The next mandamus case to reach the D.C. Circuit also challenged CMCR judges. This time, in In re Khadr, the question was whether that court’s civilian judges were violating a federal statute, 18 U.S.C. § 203(a), which prohibited the part-time practice of law by government officers (like CMCR judges) without express congressional authorization. In its May 2016 ruling, the Court of Appeals once again asserted jurisdiction, flagged the novelty of the issue, and therefore denied the petition. And once again, it still expressed a view on the merits:

Although we deny the writ, we cannot deny that Khadr has raised some significant questions. We encourage Congress and the Executive Branch to promptly attend to those issues and to make clear, one way or the other, whether the civilians who serve as judges on the U.S. Court of Military Commissions Review may continue to engage in the part-time practice of law and, if so, the circumstances under which they may do so.

Unlike in al-Nashiri I, there’s no evidence that the political branches have similarly responded to this bit of judicial encouragement.

Finally, in al-Nashiri II, the Court of Appeals in August 2016 turned away a challenge to the jurisdiction of the military commissions over pre-9/11 offenses, even though the Military Commissions Act itself appears to require charged offenses to take place during a “conflict subject to the laws of war.” Although the panel divided over whether the district court could hear Nashiri’s habeas petition raising such a claim (a matter I discussed at some length after the ruling), it was unanimous that mandamus was not appropriate—again, because of the high bar to relief coupled with the novelty of the questions presented. Heading into Wednesday’s argument in Mohammad, then, it’s hard to imagine that history won’t just repeat itself—with the Court of Appeals denying the petition on the ground that there’s no clear law about when recusal by a CMCR judge based on pre-appointment statements is required, but perhaps giving credence to its merits in the process. Recusal, of course, might be different, since there’s plenty of case law on the specific legal subject in other factual contexts. But given the Court of Appeals’ track record to date, it’s easy to see them ducking this issue, as well.

II. The Two Problems With the D.C. Circuit’s Passive-Aggressive Approach

Hopefully, it is obvious by this point that the D.C. Circuit’s “clearly established” approach to mandamus is causing most of the mischief here. It’s also normatively (and doctrinally) indefensible. Yes, using mandamus as a mechanism for pursuing an otherwise unavailable interlocutory appeal is supposed to be more difficult than the normal, de novo review that follows a final judgment. But there’s a chasm between “more difficult” and “clearly established,” and the military commissions help to illustrate that point: Many of the legal questions arising out of the commissions are of first impression. And the CMCR itself is a novelty; before 2005, there had never been any kind of appellate process in military commissions, and so just about every question about the CMCR itself is, necessarily, one on which there is no binding precedent.

But novelty is not categorically antithetical to mandamus. Novel errors and/or jurisdictional defects can be just as “clear and indisputable” as errors that have previously been addressed in binding precedent. And al-Nashiri I is a good example of this; it’s more than a little difficult to read Justice Scalia’s opinion for a unanimous Court in Edmond v. United States (1997) and conclude anything other than that CMCR judges are principal Executive Branch officers. If mandamus in this context is about confining lower courts to the proper exercise of their jurisdiction, then even if the review is more deferential than “de novo,” it surely is not as deferential as the D.C. Circuit has held. And if the D.C. Circuit can’t answer any of these novel questions through mandamus (or, thanks to the holding in al-Nashiri II, habeas), then the only other vehicle through which they can be resolved is through post-conviction appeals—appeals that are years away, and that, if meritorious, could come at an unfathomable cost to the parties and the courts in terms of resources and money needlessly expended.

All of that goes to why the D.C. Circuit ought to clean up its mandamus jurisprudence—or if it won’t, why the Supreme Court should do so. (Indeed, one of the questions presented in the pending cert. petition in al-Nashiri II is whether the mandamus standard is inappropriately high.) But even if folks disagree (or just can’t get exercised) about the burden of proof on mandamus, it’s worth reflecting a bit on the non-binding “pronouncements” that have accompanied most of these decisions. In a post that followed on the heels of Khadr, Bob Loeb and Helen Klein Murillo referred to these snippets as “advice from the D.C. Circuit.” That’s a fair description, but color me more skeptical of their utility than that post’s authors.

To understand the problem, consider the issue the Court “ducked” in al-Nashiri I, i.e., whether CMCR judges are principal Executive Branch officers (with the concomitant implications for their appointment). As noted above, the political branches responded to the decision by mooting that particular issue—taking all of the thus-far “assigned” CMCR judges and formally “appointing” them. But in the process, they actually caused a different problem, since the appointment (as opposed to assignment) of active-duty military officers to civil offices (which may include judgeships on the Article I CMCR) is prohibited unless specifically authorized by law.

In addition to a number of court-martial appeals raising the issue (in which I’m counsel of record on cert. petitions currently pending before the Supreme Court), the issue has arisen in the CMCR—which ruled in June that there was no problem with the service of military officers as judges on the CMCR largely because they had initially been assigned, not appointed, thereto. In other words, the CMCR, which is directly bound by the D.C. Circuit, wholly ignored both the hint at the end of the D.C. Circuit’s decision in al-Nashiri I and the steps the government took in response thereto—and rested its decision on the very conclusion that had provoked the mandamus petition in al-Nashiri I, i.e., that the military judges on the CMCR had duly been assigned thereto without complying with the Appointments Clause. This ruling is now back up in the D.C. Circuit (in the second Mohammad case I described above)—and yes, it’s back up on a petition for a writ of mandamus, although here, at least, the direct appeals arising out of the court-martial system may beat the D.C. Circuit to the punch.

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If you’re still reading (and don’t have a crippling mandamus headache), what I’ve just described is a variation on a theme I wrote about in 2011 with regard to the Supreme Court’s jurisprudence in post-9/11 terrorism-related cases—where the Court routinely asserted its authority, occasionally hinted at its views on the merits, but otherwise left the merits to be resolved by the political branches and/or the lower courts. Although this approach has obvious upsides from the perspective of the judges and Justices who employ it, it has downsides for almost everyone else, leaving specific legal questions unsettled while changing, in at least some respects, the terms on which subsequent litigation of those issues takes place.

In its military commission mandamus jurisprudence, the D.C. Circuit, whether consciously or otherwise, is embracing a similar form of the “passive-aggressive virtues” and, in the process, is doing little more than provoking additional (and time-consuming) litigation on issues tangential (at best) to the merits of the prosecutions currently pending before the Guantánamo tribunals. It’s hard to be optimistic that the decision that results from Wednesday’s argument will be any different.