The ABA’s Gellhorn-Sargentich Law Student Essay Award for 2022 has been won by Laura Stanley – a recent graduate of The George Washington University Law School now clerking for Judge Stephen Schwartz on the U.S. Court of Federal Claims, as well as a former colleague of mine at The George Washington University Regulatory Studies Center, and now also a colleague on the Executive Committee of the Federalist Society’s Administrative Law & Regulation Practice Group.

Stanley’s excellent essay, “Supervising Guantanamo Tribunals:  Appointments Clause Challenges After Arthrex,” appears in the October issue of the GW Law Review, and it tackles an area of law that is exceptional (and exceptionally gnarly) in many respects:  the administration of military justice at the Guantanamo Bay detention camp.  In recent years, the Supreme Court has issued a series of decisions faulting agencies for failure to comply with the Constitution’s Appointments Clause, including 2021’s U.S. v Arthrex.  The Federal Circuit in this case ruled that administrative patent judges (APJs) were not properly appointed principal officers and thus could not render final decisions for the Executive Branch; the circuit court’s remedy was to require that the patent judges be made removable by the Secretary of Commerce.  The Supreme Court agreed that the APJs violated the Appointments Clause, but it offered a different remedy:  their decisions must be reviewable by the presidentially appointed Director of the Patent and Trademark Office.

In the wake of Arthrex, defendants at Guantanamo Bay are raising Appointments Clause challenges to the military tribunals hearing their cases.  After reviewing the original meaning of the Appointments Clause and recent court decisions – especially those applying it to administrative adjudications – Stanley describes the history of “The Convening Authority,” an individual designated by the Secretary of Defense to appoint the Chief Judges of the Military Commissions Trial Judiciary and to oversee their work.  The word “exceptional” appears several times because, subsequent to the 9/11 attacks, both Congress and the Executive have employed some ad hoc innovations to fashion a system of military justice to deal with captive combatants in the war on terror.

The current Convening Authority, Col. Jeffrey Wood, was appointed as a civilian.  Therefore the fact that he already holds a Senate-confirmed military commission will likely not be a viable defense against Appointment Clause challenges to his authority to oversee Guantanamo adjudications.  After reviewing the Convening Authority’s decision-making powers and applicable accountability mechanisms, Stanley concludes that its constitutional legitimacy remains in doubt.  Notwithstanding some obstacles regarding standing (see what I did there?), Guantanamo defendants will continue to raise Appointments Clause challenges.  Stanley recommends that either (1) the President should nominate, and the Senate confirm, all Convening Authorities moving forward, or (2) the Congress should amend the Military Commissions Act of 2006 to provide the Secretary of Defense with the authority to review decisions and render them final.  This is sound advice.

At ~25 pages, Stanley’s prize-winning essay is a quicker read than most law review articles, yet it provides an in-depth look at one of the few remaining examples of administrative adjudication that renders consequential decisions without clear lines of constitutional accountability.

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