A basic issue has arisen in Akbar

University of Virginia Law Professor Aditya Bamzai has filed an interesting amicus curiae brief in the Supreme Court case of Hasan K. Akbar. The sole Question Presented in the brief is "Whether this Court has Article III jurisdiction to issue a writ of certiorari to the United States Court of Appeals for the Armed Forces." The brief relies heavily on Chief Justice John Marshall's landmark decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Congress granted the Supreme Court jurisdiction to review decisions of the then U.S. Court of Military Appeals in 1983. Scholars have long been aware of the Marbury issue, but the Supreme Court has never addressed it head-on and of course has on rare occasion granted certiorari in military cases. In United States v. Denedo, 556 U.S. 904 (2009), it did explicitly address its own jurisdiction, but not the Marbury issue. (It actually cited Marbury, but for another point.)

Congress could moot the issue by making the U.S. Court of Appeals for the Armed Forces (CAAF) an Article III court by affording the judges life tenure and protection from diminution in salary, as has been proposed in the past. It could also transfer CAAF's jurisdiction to an existing Article III court, as was suggested during the Carter Administration. Under the UCMJ, CAAF is located for administrative purposes only in the Department of Defense.