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Supreme Court hears rare appeal challenging military judges

Posted January 16, 2018 12:58 p.m. EST

— The Supreme Court delved into unusual terrain on Tuesday when it heard arguments brought by military service members -- the first time the justices have heard such a case in 21 years.

At issue in the case -- Dalmazzi v. United States -- is an 1870 statute that prohibits active-duty servicemembers from holding a second elected or appointed government office unless Congress expressly authorizes it. It's this law, for example, that prevents active-duty military officers from holding most Cabinet positions, or from being elected to state or local office.

In this case, the issue arises from the appointment of four military judges to also serve as judges on the Court of Military Commission Review, the special appeals court Congress created in 2006 to oversee the Guantánamo military commissions.

Eight service members were convicted by court-martial, and had their appeal heard by one of these four miliary judges while they were serving in both capacities. And under the 1870 statute, the servicemembers argue, the appointment of these judges to this second office should have required them to forfeit their military status -- thereby disqualifying them from hearing their appeals.

During over an hour of oral arguments, the justices didn't clearly signal which way they were headed.

Justice Ruth Bader Ginsburg worried at one point about the fate of the judges who had agreed to serve in both capacities. She wondered if they had been given "fair notice" of the potentially "draconian" consequence that they wouldn't be able to serve in the military.

"This is an important test case for a quietly important statute," said Steve Vladeck, lawyer to service members and also a CNN contributor. "The ban on dual officeholding helps to prevent against the excessive militarization of civilian governmental institutions, including, in this case, the courts."

The Trump administration argues that only one of the eight cases is properly before the Supreme Court in the first place, and that, in that case, the dual-officeholding ban isn't implicated because judges hearing appeals from military commissions exercise "a classic military function." And even if they do, the government claims that a 1983 amendment to the dual-officeholding ban insulates violations of that law from these kinds of legal challenges.