Recusal rulings by the U.S. Court of Military Commission Review

On October 17, two interesting rulings were handed down by the U.S. Court of Military Commission Review, which hears appeals from the Guantanamo military commissions. In the first, the presiding judge refused to recuse himself, rejecting a claim that it was unlawful for him to continue to practice law in his civilian capacity while serving part-time as a judge of the appellate court. In the second, two judges (one of whom is the presiding judge) also declined to recuse themselves, this time rejecting a claim that the arrangements prescribed in the Military Commissions Act violate the constitutional separation of powers. In the process, the judges noted that section 949b(b)(4) of the act permits the court's appellate military judges "to be reassigned to other duties based on military necessity, consistent with applicable service rotation regulations." Both rulings were issued in connection with United States v. Khadr, No. 13-005.

Editor's comment: The reassignment power means the court's appellate military judges do not have the protection of fixed terms of office. Terms of office are an essential element of judicial independence.