KAREN LeCRAFT HENDERSON, Circuit Judge:
Abd al-Rahim Hussein Muhammed al-Nashiri (Nashiri) is a detainee at Guantanamo Bay, Cuba, who is currently being tried by military commission. He asks this Court to resolve, via mandamus, two challenges to the constitutionality of the United States Court of Military Commission Review (CMCR). Our answer is simple: Not now. Because Nashiri can adequately raise his constitutional challenges on appeal from final judgment, we deny his petition.
The current structure of the military commissions operating at Guantanamo Bay is the product of an extended dialogue among the President, the Congress and the Supreme Court. See generally Bahlul v. United States, 767 F.3d 1, 12-15 (D.C.Cir.2014) (en banc); Aamer v. Obama, 742 F.3d 1023, 1028-30 (D.C.Cir.2014). We briefly summarize that back-and-forth here.
Immediately following the attacks of September 11, 2001, the Congress enacted an Authorization for Use of Military Force (AUMF), empowering the President to use "all necessary and appropriate force" against the perpetrators. See Pub.L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001). President George W. Bush relied on the AUMF to capture, detain and ultimately try enemy combatants by military commission at Guantanamo Bay. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57,833 (Nov. 13, 2001). In Hamdan v. Rumsfeld, however, the Supreme Court held that the military commissions failed to comply with the procedural protections of the Uniform Code of Military Justice (UCMJ) and Geneva Conventions. See 548 U.S. 557, 567, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). But because those protections were creatures of statute, several Justices noted that the Congress was free to amend them. See id. at 653, 126 S.Ct. 2749 (Kennedy, J., joined by Souter, Ginsburg, Breyer, JJ., concurring).
The lay of the land shifted again in 2009. On assuming office, President Barack Obama temporarily suspended the operations of the Guantanamo Bay military commissions. See Exec. Order No. 13,492, 74 Fed.Reg. 4897, 4899 (Jan. 22, 2009). After further review, however, the President sought to reform the military commissions instead of dismantling them. See JENNIFER K. ELSEA, CONG. RESEARCH SERV., R 41163, THE MILITARY COMMISSIONS ACT OF 2009 (MCA 2009): OVERVIEW AND LEGAL ISSUES 3 (2014). The Congress obliged and enacted the Military Commissions Act of 2009 (2009 MCA), Pub L. No. 111-84, 123 Stat. 2190, 2574-614. The 2009 MCA added several procedural protections for enemy combatants. See generally ELSEA, supra, at 40-55 chart 2. It also expanded the availability of appellate review. Under the 2006 MCA, the CMCR and this Court could review military-commission judgments only on "matters of law." 120 Stat. at 2621, 2622. Pursuant to the 2009 MCA, the CMCR can now review "any matter" — fact or law — and even "weigh the evidence" and "judge the credibility of witnesses." 10 U.S.C. § 950f(c)-(d).
Most importantly here, the 2009 MCA altered the structure of the CMCR. The CMCR is now a "court of record" composed of both civilian and military judges. Id. § 950f(a)-(b). Civilian judges are appointed to the CMCR by the President with the advice and consent of the Senate.
Nashiri is a Saudi national and an alleged member of al Qaeda. According to the prosecution, Nashiri is the mastermind behind the bombings of the U.S.S. Cole and the M/V Limburg, and the attempted bombing of the U.S.S. The Sullivans. He was apprehended in Dubai in 2002 and transferred to Guantanamo Bay in 2006. Nashiri is charged with nine offenses, including terrorism, murder in violation of the law of war, attacking civilians, hijacking a vessel and attacking civilian objects. In 2011, the Defense Department convened a military commission to try Nashiri on these charges. It is seeking the death penalty.
In August 2014, Nashiri's military trial judge dismissed the charges and specifications stemming from the M/V Limburg bombing. The Government immediately appealed that ruling to the CMCR. See 10 U.S.C. § 950d(a)(1) (authorizing Government to take interlocutory appeal when military judge "terminates proceedings... with respect to a charge or specification"). Two military judges and one civilian judge were assigned to hear the Government's interlocutory appeal. In September 2014, Nashiri moved to recuse the two military judges. He alleged that military judges are assigned to the CMCR in violation of the Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, and cannot be freely removed in violation of the Commander-in-Chief Clause, id. cl. 1. The CMCR denied Nashiri's motion in October 2014 and, one week later, Nashiri filed the petition now before us. He asks this Court to issue a writ of mandamus and prohibition
This case requires us to address the two "P's" of mandamus: our power to issue the writ and whether issuance would be proper. For the reasons set out below, we conclude that we have jurisdiction to issue the writ but it would be inappropriate to do so here.
We first address our jurisdiction. See In re Asemani, 455 F.3d 296, 299 (D.C.Cir.2006) ("Before considering whether mandamus relief is appropriate, ... we must be certain of our jurisdiction."). The All Writs Act allows us to issue "all writs necessary or appropriate in aid of [our] jurisdiction[]." 28 U.S.C. § 1651(a). It is not, however, "an independent grant of appellate jurisdiction." Clinton v. Goldsmith,
Of course, when it comes to jurisdiction, the Congress giveth and the Congress taketh away. See Estep v. United States, 327 U.S. 114, 120, 66 S.Ct. 423, 90 L.Ed. 567 (1946) ("[E]xcept when the Constitution requires it, judicial review of administrative action may be granted or withheld as Congress chooses."). The 2006 MCA contains a jurisdiction-stripping provision that states:
28 U.S.C. § 2241(e) (emphases added).
A statute does not strip our authority under the All Writs Act absent a "clear[]" statement to that effect. Belbacha v. Bush, 520 F.3d 452, 458 (D.C.Cir. 2008) (citing Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979); FTC v. Dean Foods Co., 384 U.S. 597,
In Belbacha, we held that section 2241(e)(2) "does not displace [our] remedial authority, pursuant to the All Writs Act, to issue an auxiliary writ in aid of [our] jurisdiction." 520 F.3d at 458 (quotation marks omitted). It does not satisfy the clear-statement rule, we reasoned, because it fails to expressly include our "remedial powers." Id. at 458 n. *. Although Belbacha deals with our authority to issue a preliminary injunction, its holding governs this case as well. The text of section 2241(e)(2) makes no mention of "mandamus" — an important omission under our case law. In Ganem v. Heckler, for example, we considered whether the following provision stripped the district court's mandamus power:
746 F.2d 844, 850-51 (D.C.Cir.1984) (quoting Social Security Act Amendments of 1939, Pub.L. No. 76-379, § 205(h), 53 Stat. 1360, 1371 (1939)). We compared the provision to the language of another statute that declared:
Id. at 851-52 (quoting Pub.L. No. 91-376, § 8, 84 Stat. 787, 790 (1970)) (emphasis in original). Comparing the two statutes, we concluded that "when Congress desire[s] to prohibit actions in the nature of mandamus..., it d[oes] so expressly." Id. at 851; see also id. at 852 ("The fact that Congress knows how to withdraw a particular remedy and has not expressly done so is some indication of a congressional intent to preserve that remedy."). The same reasoning applies here: the text of section 2241(e)(2) bears little resemblance to statutes that expressly strip mandamus jurisdiction.
In short, statutory silence does not equate to a clear statement. See Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651,
We are nonetheless mindful of the final-judgment rule that the Congress included in the 2009 MCA. See 10 U.S.C. § 950g(a). Although it does not defeat our jurisdiction, the rule serves an important purpose that would be undermined if we did not faithfully enforce the traditional prerequisites for mandamus relief. See Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) ("A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be furthered by th[e] judgment of Congress" that "appellate review should be postponed until after final judgment." (ellipsis omitted)); In re Papandreou, 139 F.3d 247, 250 (D.C.Cir.1998) ("Lax rules on mandamus would undercut the general rule that courts of appeals have jurisdiction only over final decisions ... and would lead to piecemeal appellate litigation." (quotation marks and citation omitted)). We turn to those prerequisites now.
Mandamus is proper only if three conditions are satisfied:
Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (citations, brackets and quotation marks omitted). We conclude that Nashiri does not satisfy the first and second requirements.
As we often caution, "[m]andamus is a `drastic' remedy, `to be invoked only in extraordinary circumstances.'" Fornaro v. James, 416 F.3d 63, 69 (D.C.Cir.2005) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980)). It is not available unless "no adequate alternative remedy exists." Barnhart v. Devine, 771 F.2d 1515, 1524 (D.C.Cir.1985). Otherwise, the writ could "be used as a substitute for the regular appeals process." Cheney, 542 U.S. at 380-81, 124 S.Ct. 2576. Chief Justice Waite summed it up well: "The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary remedy, may not be done with it." Ex parte Rowland, 104 U.S. 604, 617, 14 Otto 604, 26 L.Ed. 861 (1881).
Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment. See Roche, 319 U.S. at 27-28, 63 S.Ct. 938 ("Ordinarily mandamus may not be resorted to as a mode of review where a statutory method of appeal has been prescribed or to review an appealable decision of record."); Nat'l Right to Work Legal Def. v. Richey, 510 F.2d 1239, 1242 (D.C.Cir.1975) (mandamus unavailable when "review of the ... question will be fully available on appeal from a final judgment"); see also Goldsmith, 526 U.S. at 537 & n. 11, 119 S.Ct. 1538
First, Nashiri draws an analogy to judicial disqualification, pointing out that this Court has entertained mandamus petitions when a judicial officer declines to recuse himself. See, e.g., In re Kempthorne, 449 F.3d 1265, 1269 (D.C.Cir.2006); In re Brooks, 383 F.3d 1036, 1041 (D.C.Cir.2004); Cobell v. Norton, 334 F.3d 1128, 1139 (D.C.Cir.2003). But Nashiri misses the "irreparable" injury that justified mandamus in those cases: the existence of actual or apparent bias. Cobell, 334 F.3d at 1139. With actual bias, ordinary appellate review is insufficient because it is too difficult to detect all of the ways that bias can influence a proceeding. See id. ("[I]f prejudice exist[ed], it has worked its evil and a judgment of it in a reviewing tribunal is precarious. It goes there fortified by presumptions, and nothing can be more elusive of estimate or decision than a disposition of a mind in which there is a personal ingredient.") (quoting Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 65 L.Ed. 481 (1921)). With apparent bias, ordinary appellate review fails to restore "public confidence in the integrity of the judicial process," Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) — confidence that is irreparably dampened once "a case is allowed to proceed before a judge who appears to be tainted." In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d Cir.1992); accord In re United States, 666 F.2d 690, 694 (1st Cir.1981) ("Public confidence in the courts requires that [bias] question[s] be disposed of at the earliest possible opportunity." (alterations omitted)). Nashiri does not allege that the military judges on the CMCR are biased against him — in fact or apparently. And our recusal cases do not support his petition. See Cobell, 334 F.3d at 1139 ("A case involving a motion for disqualification is clearly distinguishable from those where a party alleges an error of law that may be fully addressed and remedied on appeal." (quoting In re United States, 666 F.2d at 694 (ellipsis omitted))).
Nashiri reads our precedent differently. He contends that, in addition to bias, our recusal cases recognize another form of irreparable injury: a violation of the separation of powers. He cites Cobell, 334 F.3d at 1141, for this proposition. Yet, apart from bias, the irreparable injury we identified in Cobell was not an abstract concern with the separation of powers but rather the risk of "interference with the internal deliberations of a Department of the Government of the United States." Id. at 1140-43. There, a court monitor was attending internal Department of Interior (DOI) meetings and interfering with the agency's ability to comply with a court order. See id. at 1134-35, 1141-43. We put a stop to it, via mandamus, because
Second, Nashiri contends that, absent mandamus relief, he will suffer irreparable injury in the form of "the sui generis harms associated with defending against capital charges." Pet'r's Br. 13 (quotation marks omitted). He, in effect, wants us to create a "death penalty" exception to the traditional rules of mandamus. We decline the invitation. Such an exception would contradict the bedrock principle of mandamus jurisprudence that the burdens of litigation are normally not a sufficient basis for issuing the writ. See Parr v. United States, 351 U.S. 513, 519-20, 76 S.Ct. 912, 100 L.Ed. 1377 (1956) (finality requirements assume "the [defendant] will have to hazard a trial ... before he can get a review" and "bear[] the discomfiture and cost of a prosecution"); Roche, 319 U.S. at 30, 63 S.Ct. 938 ("[A criminal t]rial may be of several months' duration and may be correspondingly costly and inconvenient. But that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable."); see also Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,
Granted, in United States v. Harper, the Ninth Circuit relied on the "substantial hardship" of a capital trial to support its decision to issue a writ of mandamus. 729 F.2d 1216, 1222-23 (9th Cir.1984). But the constitutionality of the death penalty was the subject of the mandamus petition in that case. Specifically, the Harper court used mandamus to strike down the death-penalty provision of the Espionage Act. See id. at 1226. Here, however, Nashiri challenges the composition of an intermediate appellate tribunal. We fail to see how granting his petition would spare him the burdens of capital prosecution. Even if the military judges were disqualified and an all-civilian panel of the CMCR affirmed the dismissal of the M/V Limburg charges, Nashiri has yet to even begin defending against the capital charges stemming from the bombing of the U.S.S. Cole and the attempted bombing of the U.S.S. The Sullivans. Thus, capital prosecution is inevitable for Nashiri, with or without mandamus. Harper is therefore inapposite.
Finally, Nashiri contends that, even absent irreparable harm, we should exercise our mandamus power to resolve the constitutional status of military judges on the CMCR — a pure question of law that could affect many cases. In other words, he wants us to use the writ in an "advisory" capacity. See generally 16 WRIGHT & MILLER § 3934.1. Whatever the continued legitimacy of advisory mandamus, see First Nat'l Bank of Waukesha v. Warren, 796 F.2d 999, 1004 (7th Cir.1986) ("Although the [Supreme] Court has not yet erected the tombstone, it has ordered flowers."), our past willingness to use the writ in that capacity "cannot be read expansively." United States v. Hubbard, 650 F.2d 293, 309-10 n. 62 (D.C.Cir.1980); see also Banks, 471 F.3d at 1350 ("So reluctant are we to consider [advisory] mandamus relief that even where we have been presented really extraordinary cases, we are careful to caution against indiscriminate mandamus review." (quotation marks omitted)). Even if we were willing, we are unable to use advisory mandamus here because it would circumvent the no-other-adequate-means requirement. See Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 198 (D.C.Cir.2002) ("[N]o writ of mandamus — whether denominated `advisory,' `supervisory,' or otherwise — will issue unless the petitioner shows ... that [he] has no other adequate means of redress."); see also NACDL, 182 F.3d at 987 ("In no event ... could clear error alone support the issuance of a writ of mandamus" when the error "could be corrected on appeal without irreparable harm").
Additionally, the use of advisory mandamus in this case would conflict with the constitutional avoidance doctrine, a "time-honored practice of judicial restraint." Cisneros, 169 F.3d at 768. Nashiri's petition presents two constitutional questions of first impression and "[c]ourts do not reach out to decide such questions." Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 1507 (D.C.Cir.1986). Because Nashiri may ultimately be acquitted of the charged offenses, we may never need to resolve his constitutional challenges to the 2009 MCA. We should plainly not enter the fray now. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.").
Nor can Nashiri demonstrate a "clear and indisputable" right to the writ. Cheney, 542 U.S. at 381, 124 S.Ct. 2576. Given its "exceptional" nature, we cannot use mandamus to remedy anything less than a "clear abuse of discretion or usurpation of judicial power." Bankers Life, 346 U.S. at 383, 74 S.Ct. 145 (quotation mark omitted). Otherwise, "every interlocutory order which is wrong might be reviewed under the All Writs Act" and "[t]he office of a writ of mandamus would be enlarged to actually control the decision of the trial court rather than used in its traditional function of confining a court to its prescribed jurisdiction." Id.
With these principles in mind, only Nashiri's Appointments Clause challenge gives us pause. The Clause requires "all... Officers of the United States" to be appointed by the President "by and with the Advice and Consent of the Senate." U.S. CONST. art. II, § 2, cl. 2. This requirement is subject to an Excepting Clause that allows the Congress to vest the appointment of "inferior" officers in "the Heads of Departments." Id. As noted supra, military judges are "assigned" to the CMCR by the Secretary of Defense, 10 U.S.C. § 950f(b)(2) — the "Head[]" of the Department of Defense, see Burnap v. United States, 252 U.S. 512, 515, 40 S.Ct. 374, 64 L.Ed. 692 (1920) ("The term `head of a department' means ... the Secretary in charge of a great division of the executive branch of the government, like the State, Treasury, and War, who is a member of the Cabinet."). Nashiri argues, however, that CMCR judges are "principal," rather than "inferior," officers and are therefore ineligible for the Excepting Clause. See Morrison v. Olson, 487 U.S. 654, 670-71, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).
This Court has not addressed whether CMCR judges are principal or inferior officers. In Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997), the Supreme Court considered a close analog: the judges who serve on the CCAs. The Edmond Court acknowledged that CCA judges enjoy extended tenure, have broad jurisdiction and "exercis[e] significant authority on behalf of the United States." Id. at 661-62, 117 S.Ct. 1573. It nevertheless concluded that CCA judges are inferior officers because their work is extensively supervised. See id. at 666, 117 S.Ct. 1573. According to the Court:
Id. at 662-63, 117 S.Ct. 1573. CCA judges are supervised by two entities: the Judge Advocates General and the CAAF. Id. at 664, 117 S.Ct. 1573. The Judge Advocates General "prescribe uniform rules of procedure" for the CCAs; "meet periodically... to formulate policies and procedure in regard to review of court-martial cases"; and "may ... remove a[CCA] judge from his judicial assignment without cause" so long as the removal is not motivated by an "attempt to influence ... the outcome of
CMCR judges are similar to CCA judges in several respects — a similarity the Congress no doubt intended, see 10 U.S.C. § 948b(c) ("The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial...."). For example, like the Judge Advocates General, the Secretary of Defense supervises the CMCR by promulgating its procedures, id. § 950f(c), and he can also remove its military judges, id. § 949b(b)(4). Further, this Court reviews the CMCR's decisions under a review provision virtually identical to the CAAF's. See id. § 867(c). The judges of this Court are, of course, "appointed by Presidential nomination with the advice and consent of the Senate." Edmond, 520 U.S. at 663, 117 S.Ct. 1573.
Despite these similarities, however, there are key differences between CMCR judges and their CCA counterparts. While the Judge Advocates General can remove CCA judges without cause, the Defense Secretary can remove military judges from the CMCR for "good cause" or "military necessity" only. 10 U.S.C. § 949b(b)(4). Because removal is "a powerful tool for control," Edmond, 520 U.S. at 664, 117 S.Ct. 1573, the added insulation of CMCR judges is constitutionally significant. Additionally, the Supreme Court made a point in Edmond to emphasize that the CAAF is "another Executive Branch entity." Id. at 664 & n. 2, 117 S.Ct. 1573 (emphasis added). The CMCR's decisions, by contrast, "are appealable only to [a] court[] of the Third Branch," id. at 666, 117 S.Ct. 1573 — namely, this Court. 10 U.S.C. § 950g(a).
The key question, then, is whether the CMCR's variation on the CCA model converts its military judges from inferior to principal officers. We faced a similar issue in Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332 (D.C.Cir.2012). There, we considered an Appointments Clause challenge to the Copyright Royalty Judges (CRJs). The Copyright Royalty Board (Board) sets the terms and conditions of copyright licensing agreements by conducting ratemaking proceedings. See id. at 1334-35. CRJs are appointed by the Librarian of Congress, 17 U.S.C. § 801(a), and can be removed for misconduct or neglect of duty, see id. § 802(i). The Board's rate determinations are reviewed by this Court. Id. § 803(d)(1). We concluded in Intercollegiate that CRJs are principal officers. See 684 F.3d at 1340. The CRJs' for-cause removal protection is not "generally consistent with the status of an inferior officer." Id. And the fact that the Board's rate determinations are reviewed by this Court rather than by an Executive Branch body means that "CRJs issue decisions that are final for the executive branch." Id. Although the Librarian "approv[es] the CRJs' procedural regulations," id. at 1338 (citing 17 U.S.C. § 803(b)(6)), this limited supervision does not render the CRJs inferior officers because the Librarian does not "play an influential role in the[ir] substantive decisions." Id.
Still, CMCR military judges are not entirely like the CRJs in Intercollegiate. Most significantly, the Defense Secretary has broader authority to remove military judges from the CMCR than the Librarian of Congress has vis-à-vis the CRJs. The Secretary can remove a military judge either for good cause or "military necessity." 10 U.S.C. § 949b(b)(4). This additional removal authority is non-trivial; we would likely give the Executive Branch substantial discretion to determine what constitutes
In short, neither the CCAs (Edmond) nor the Copyright Royalty Board (Intercollegiate) is a perfect analog of the CMCR. This is unsurprising, as "[t]he line between `inferior' and `principal' officers" is "far from clear" and highly contextual. Morrison, 487 U.S. at 671, 108 S.Ct. 2597. More importantly, even if we agreed with Nashiri that military CMCR judges are principal officers, our analysis could not end there. As mentioned earlier, the Defense Secretary can assign only "commissioned" military officers to the CMCR. 10 U.S.C. § 950f(b)(2). To become a commissioned military officer, an individual must be nominated by the President with the advice and consent of the Senate, id. § 531(a)
The Supreme Court answered this question in the negative in Weiss v. United States, 510 U.S. 163, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994). That case involved CCA
Weiss is more complicated, however, than the Court's unanimity might ordinarily suggest. Notably, the Court declined to hold that "germaneness" is required by the Appointments Clause; instead, it "assume[d], arguendo, that the principle of `germaneness' applies." Id. at 174, 114 S.Ct. 752. Justice Scalia, joined by Justice Thomas, wrote separately to explain why they believe germaneness is constitutionally required. See id. at 196, 114 S.Ct. 752 (Scalia, J., concurring in part and concurring in judgment) ("[T]aking on ... non-germane duties ... would amount to assuming a new `Offic[e]' within the meaning of Article II, and the appointment to that office would have to comply with the strictures of Article II."). But the majority opinion found it unnecessary to decide that question.
Additionally, Justice Souter wrote separately to explain why he thinks CCA judges are "inferior officers" under the Appointments Clause. Id. at 182, 114 S.Ct. 752 (Souter, J., concurring). Their inferior-officer status was important to Justice Souter because it meant that the assignment of commissioned military officers to the CCAs was inferior-to-inferior, not inferior-to-principal. Id. at 190, 114 S.Ct. 752. For Justice Souter, an inferior-to-principal assignment — without a second Presidential nomination and Senate confirmation — "would raise a serious Appointments Clause problem," id. at 191, 114 S.Ct. 752, because inferior-to-principal assignments would amount to an "abdication" of both the President's and the Senate's contemplated roles under the Appointments Clause. Id. at 189, 114 S.Ct. 752. According to Justice Souter, "[i]t cannot seriously be contended that in confirming the literally tens of thousands of military officers each year the Senate would, or even could, adequately focus on the remote possibility that a small number of them would eventually serve as military judges." Id. at 190-91, 114 S.Ct. 752. Justices Scalia and Thomas, for their part, noted that the issues presented by inferior-to-principal assignments are "complex." See id. at 196 n. *, 114 S.Ct. 752 (Scalia, J., concurring).
Nevertheless, the majority opinion in Weiss did not discuss whether military judges are principal officers. Nor did the Court suggest that the inferior-versus-principal distinction played a role in its constitutional analysis. But neither did Weiss hold that an inferior-to-principal assignment without a separate appointment is permissible. After Edmond, we know that CCA judges are inferior officers and, thus, Weiss dealt only with an inferior-to-inferior assignment. See Edmond, 520 U.S. at 666, 117 S.Ct. 1573.
As the foregoing discussion demonstrates, Nashiri's Appointments Clause challenge raises several questions of first impression. Are CMCR military judges principal or inferior officers? If they are principal officers, does their initial appointment to be commissioned military officers satisfy the Appointments Clause? Likewise, what role, if any, does "germaneness" play in the constitutional analysis? Does the Appointments Clause require germaneness for inferior-to-inferior assignments? If not, would germaneness nonetheless cure any Appointments Clause question with an inferior-to-principal assignment? Are the duties of a CMCR military judge germane to the duties of a commissioned military officer? These are but a few of the questions we would confront if we followed Nashiri down the rabbit hole.
We do not resolve these open questions today. What matters for Nashiri's
There may be another reason to pump our judicial brakes. 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.
For the foregoing reasons, Nashiri's petition for a writ of mandamus and prohibition is
Denied.
10 U.S.C. § 950g(a)-(b), (d).