Challenge to the Court of Military Commission Review
Salim Hamdan challenged the eligibility of two of the judges sitting on his Court of Military Commission Review (CMCR) panel. The CMCR is the appellate court for the Military Commission system, and, under the Regulation for Trial by Military Commission (2007), judges assigned to the CMCR should be “judge advocates who are currently certified and detailed as appellate military judges to the services’ Courts of Criminal Appeals, or civilians of comparable qualifications.” Currently, all judges assigned to the CMCR are detailed from the Courts of Criminal Appeals (CCAs) of the various services.
Hamdan’s challenge was that two judges on his CMCR panel had been reassigned from a CCA, and therefor the CMCR that reviewed his case was improperly constituted. Air Force Col Thompson was an Air Force Court of Criminal Appeals (AFCCA) judge when assigned to the CMCR, but left the AFCCA in June of 2010. Hamdan claimed that Col Thompson was not qualified to sit on the CMCR since she was no longer a CCA judge, and that a decision by an improperly constituted CMCR would be reversible error. See Ryder v. United States, 515 U.S. 177 (1995); United States v. Lane, 64 M.J. 1 (CAAF 2006).
The challenge of the other CMCR judge, Navy CAPT O’Toole, was that he was reassigned away from his position as chief judge of the Navy-Marine Corps Court of Criminal Appeals (NMCCA) into the newly-created position of Assistant Judge Advocate General, Chief Judge of the Department of the Navy (AJAG-CJ). Hamdan challenged CAPT O’Toole on several grounds: that the AJAG-CJ is ineligible to sit on the NMCCA; that the AJAG-CJ is the senior rating officer for all judges of the NMCCA (and would have an appearance of influence over NMCCA judges); and that sitting on the CMCR would be a breach of statute, see 10 U.S.C. 866(g), UCMJ Art. 66(g), and regulation, see Regulation for Trial by Military Commission para. 25-2.c.
Al Bahlul joined in Hamdan’s challenge, see this motion, insofar as that CAPT O’Toole should recuse himself from supervisory duty over other CMCR judges. The CMCR issued a ruling clarifying the duties of the AJAG-CJ, stating that CAPT O’Toole is not a rater for any judge on the CMCR, and that the rater for those judges is the Navy Judge Advocate General. But this does not address the issues raised by Hamdan—the requirement that CMCR judges must concurrently assigned to a CCA. The National Institute of Military Justice filed an amicus brief in support of Hamdan.