Supervising Guantanamo Tribunals: Appointments Clause Challenges after Arthrex

Abstract

Recent Supreme Court jurisprudence suggests courts may begin to play a greater role in scrutinizing congressional statutes that shield agency adjudicators from presidential control. In the context of patent adjudication, the Supreme Court held in Arthrex that administrative patent judges’ decisions must be subject to agency-head review because the judges issued final decisions on behalf of the executive branch, but they were not properly appointed under the Appointments Clause as principal officers. There are few remaining administrative adjudicators who issue final decisions that lack final agency-head review. The Convening Authority—the person who convenes military tribunals known as “military commissions” to try unlawful enemy combatants for violations of the law of war—is an outlier. Although the Convening Authority reports to and is removable by the Secretary of Defense, only some of the officer’s decisions are reviewable by an executive tribunal.

This Essay examines this exceptional system of executive oversight in the aftermath of Arthrex. It argues that until there is certainty regarding the Convening Authority’s officer status, defendants will continue to raise Appointments Clause challenges, causing additional setbacks for the military commissions that have already largely failed to secure convictions. Ultimately, this Essay recommends incorporating senatorial consent into the appointment of the Convening Authority or providing for agency-head review in the Military Commissions Act in order to prevent future Appointments Clause challenges.

Keywords: Administrative Law, Adjudication, Appointments Clause, Military Commissions, Guantanamo Tribunals