Supervising the Guantanamo Tribunal Supervisor after Arthrex

Yale Journal on Regulation Blog

March 22, 2022

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The Supreme Court held in United States v. Arthrex that administrative patent judges’ decisions must be subject to agency-head review because they were not appointed as principal officers. In practice, and as Professor Chris Walker has explained, there are not many remaining administrative adjudicators who issue final decisions that lack agency-head review. But there are some. The Convening Authority—the person who convenes the “military commissions” to try unlawful enemy combatants for violations of the law of war—is such an outlier.

After the September 11 attacks, President George W. Bush set up military commissions to try non-citizens suspected of terrorist acts. The Supreme Court invalidated that system in Hamdan v. Rumsfeld and held that the military commission system needed to have rules as similar as possible to the military justice rules found in the Uniform Code of Military Justice.

In response, Congress passed the Military Commissions Act, which authorized the trial of “alien unlawful enemy combatants” by military commissions that are housed in the Department of Defense. Under the statute, military commissions can be convened by the Secretary of Defense or any official who the Secretary designates as the “Convening Authority.”

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