ALI HAMZA AHMAD SULIMAN AL BAHLUL, PETITIONER v. UNITED STATES OF AMERICA, RESPONDENT
No. 19-1076
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2020 Decided August 4, 2020
On Petition for Review from the United States Court of Military Commission Review
Michel Paradis, Counsel, Office of the Chief Defense Counsel, argued the cause for petitioner. With him on the briefs were Mary McCormick, Timothy McCormick, and Todd E. Pierce.
Eric S. Montalvo was on the brief for amici curiae The Anti-Torture Initiative of the Center for Human Rights & Humanitarian Law at American University Washington College of Law in support of petitioner.
Joseph Palmer, Attorney, argued the cause for respondent. With him on the brief were Steven M. Dunne, Chief, and Danielle S. Tarin, Attorney.
Before: GRIFFITH and RAO, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge:
I.
Al Bahlul is a Yemeni national who travelled to Afghanistan in the late 1990s to join Al Qaeda. Once there, Al Bahlul pledged an oath of loyalty to Osama bin Laden, underwent military training, and eventually led Al Qaeda‘s propaganda efforts. Most notably, he created a video for bin Laden in the aftermath of the U.S.S. Cole bombing that celebrated the terrorist attack on an American destroyer and called for jihad against the United States. Al Bahlul also served as bin Laden‘s personal assistant and secretary for public relations. Just before the attacks of September 11, 2001, Al Bahlul arranged loyalty oaths for two of the hijackers. In the immediate aftermath, he operated the radio used by bin Laden to follow media coverage of the attacks.
Weeks after the September 11 attacks, Al Bahlul fled to Pakistan, where he was captured in December 2001 and turned over to the United States. He was transferred in 2002 to the United States Naval Station at Guantanamo Bay, Cuba, where he has since been detained. This is Al Bahlul‘s second direct appeal challenging his prosecution under the military commission system established by Congress in the Military Commissions Act of 2006 (“2006 MCA“), Pub. L. No. 109-366, 120 Stat. 2600.1 In previous opinions, we have provided a detailed account of his legal actions, so we provide only a brief summary here. See Al Bahlul v. United States (Al Bahlul I), 767 F.3d 1, 5-8 (D.C. Cir. 2014) (en banc); Al Bahlul v. United States (Al Bahlul III), 840 F.3d 757, 758 (D.C. Cir. 2016) (per curiam).
Al Bahlul was tried by a military commission convened pursuant to the 2006 MCA. Section 948h of the 2006 MCA provides that “[m]ilitary commissions ... may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose.”
In 2007, the Secretary of Defense designated Susan Crawford as the Convening Authority. Prior to her designation, Crawford was already serving as a Senior Judge of the Court of Appeals for the Armed Forces (“CAAF“)2 as well as an employee serving a three-year term in the Senior Executive Service. Crawford convened a commission to try Al Bahlul of three substantive offenses enumerated in the 2006 MCA: conspiracy to commit war crimes, providing material support for terrorism, and soliciting others to commit war crimes. See
The commission convicted Al Bahlul on all three counts and sentenced him to life in prison. Crawford approved the conviction, and the CMCR affirmed. See United States v. Al Bahlul, 820 F. Supp. 2d 1141 (CMCR 2011). A panel of this court then vacated all three convictions on the grounds that the 2006 MCA did not authorize prosecutions based on conduct occurring before 2006 unless the conduct was already prohibited as a war crime and triable by military commission. See Al Bahlul v. United States, No. 11-1324, 2013 WL 297726 (D.C. Cir. Jan. 25, 2013).
Sitting en banc, this court upheld Al Bahlul‘s conviction for conspiracy while vacating the two remaining convictions. See Al Bahlul I, 767 F.3d 1. Because Al Bahlul raised no objections at trial, we reviewed his newly raised constitutional objections only for plain error. See id. at 8-11. We held that Al Bahlul‘s ex post facto challenge to his conspiracy conviction failed under the plain error standard on two grounds: First, “the conduct for which he was convicted was already criminalized under
Al Bahlul raises six discrete arguments on appeal. First, he argues that the CMCR applied the wrong harmless error standard in reviewing his sentence on remand by failing to determine beyond a reasonable doubt that the military commission would have imposed the same sentence absent the two convictions vacated by Al Bahlul I. Second, he claims that Crawford‘s appointment as the Convening Authority violated the 2006 MCA, which in his view permits the Secretary to designate only individuals who are already officers of the United States at the time of the designation. Third, he argues that Crawford‘s appointment violated the Appointments Clause of the Constitution because the Convening Authority acts as a principal officer who must be appointed by the President with Senate approval. Fourth, even if the Convening Authority is an inferior officer, Al Bahlul contends that Crawford‘s appointment violated the Appointments Clause because Congress did not vest the appointment of the Convening Authority in the Secretary by law. Fifth, Al Bahlul argues that recent Supreme Court precedent requires us to reexamine his ex post facto challenge to his conspiracy conviction, this time de novo. Sixth and finally, he raises several challenges to the conditions of his ongoing confinement—namely, that he has allegedly been subjected to indefinite solitary confinement and denied eligibility for parole.
For the reasons discussed below, only Al Bahlul‘s first argument has merit. In reevaluating Al Bahlul‘s sentence, the CMCR should have asked whether it was beyond a reasonable doubt that the military commission would have imposed the same sentence for conspiracy alone. We reject Al Bahlul‘s remaining arguments. Crawford‘s appointment as the Convening Authority was lawful, there is no reason to unsettle Al Bahlul I‘s ex post facto ruling, and we lack jurisdiction in an appeal from the CMCR to entertain challenges to the conditions of Al Bahlul‘s ongoing confinement. We therefore affirm in part, reverse in part, and dismiss Al Bahlul‘s petition in part for lack of jurisdiction. We remand for reconsideration of the sentence under the correct standard.
II.
We start with Al Bahlul‘s sole meritorious claim. Al Bahlul argues that the CMCR erred by reassessing his sentence without remand to the military commission and, further, by misapplying the harmless error doctrine in maintaining his life sentence. In Al Bahlul I, the en banc court directed the CMCR to “determine the effect, if any, of the two” vacated convictions on Al Bahlul‘s sentence. 767 F.3d at 31. While we conclude that the CMCR had the discretion to reassess the sentence without remanding to the military commission, we agree that the CMCR erred by reaffirming Al Bahlul‘s life sentence without first determining that the constitutional errors were harmless beyond a reasonable doubt.
As an initial matter, the CMCR correctly determined that it had the authority
In light of the parallels in text and structure, we have previously relied on the UCMJ to inform our interpretation of the statutes governing military commissions. See In re Al Nashiri, 835 F.3d 110, 122-23 (D.C. Cir. 2016). Here, we conclude that the CMCR did not err when it applied the Winckelmann factors in concluding it was appropriate to evaluate the sentence without remanding to a military commission. In the court-martial context, a military court has discretion under Winckelmann to reevaluate a sentence without remand, and we have held that the military should not be held to higher procedural standards in the context of military commissions than it would in the court-martial context. Id. To the contrary, if a “procedure for courts-martial is considered adequate to protect defendants’ rights, the same should be true of the review procedure for military commissions.” Id. at 123.
Whether to remand for reconsideration of a sentence is left to the military court‘s discretion, so we review the CMCR‘s decision only for abuse of discretion. See Winckelmann, 73 M.J. at 12. The CMCR properly applied the Winckelmann factors, and it was not an abuse of discretion to reevaluate Al Bahlul‘s sentence without remand to the military commission. After we vacated two of his convictions, Al Bahlul remained subject to the same maximum sentence—life in prison—and the one remaining conviction for conspiracy was predicated on the same conduct as the two that were vacated. Moreover, as the CMCR noted, “‘conspiracy to commit murder is not so novel a crime that‘” the intermediate court would be “‘unable to “reliably determine what sentence would have been imposed at trial“‘” with respect to Al Bahlul‘s similar crime of conspiracy to commit war crimes, including the murder of noncombatants. Al Bahlul, 374 F. Supp. 3d at 1273 (quoting Winckelmann, 73 M.J. at 16).
In reevaluating Al Bahlul‘s sentence, however, the CMCR applied the wrong legal standard. When an intermediate military court “reassesses a sentence because of a prejudicial error, its task differs from that which it performs in the ordinary review of a case.” United States v. Sales, 22 M.J. 305, 307 (CMA 1986). To “purge[ ]” the sentence “of prejudicial error,” the new sentence should be less than or equal to the sentence that would have been delivered by the trier of fact “absent any error.” Id. at 308. Here, the CMCR concluded that the original life sentence remained appropriate because any constitutional error in Al Bahlul‘s original sentence was harmless. Yet the CMCR misapplied well-established harmless error principles.
In ordinary criminal proceedings, an error may be found harmless if the
The CMCR purported to rely on the standard articulated by the Court of Military Appeals in Sales but erred in the application of the standard. The CMCR maintained that it could reaffirm the original sentence because the court was “confident that, absent the error, the [military commission] would have sentenced the appellant to confinement for life.” Id. at 1273. Yet nowhere did the court explicitly address whether the errors were harmless beyond a reasonable doubt. Because the errors identified by Al Bahlul I were constitutional ex post facto violations, the CMCR applied the wrong harmless error standard and therefore abused its discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (holding that it is necessarily an abuse of discretion to apply the wrong legal standard). We therefore reverse and remand for the CMCR to redetermine “the effect, if any, of the two vacaturs on sentencing.” Al Bahlul I, 767 F.3d at 31. Under the harmless error standard the government concedes applies, the CMCR must determine the constitutional errors were harmless beyond a reasonable doubt.
III.
Next, Al Bahlul argues that Crawford‘s appointment by the Secretary as Convening Authority was unlawful on three grounds. First, he maintains that the 2006 MCA permits the Secretary to select only individuals who are already serving as officers of the United States. Alternatively, he argues that the Convening Authority acts as a principal officer, thus requiring presidential appointment after Senate confirmation. Finally, Al Bahlul argues that even if the Convening Authority is an inferior officer, Crawford‘s appointment by the Secretary violated the Appointments Clause, because the 2006 MCA did not vest the Secretary with the power to appoint an inferior officer.
Al Bahlul‘s challenges require us to interpret both the Constitution‘s Appointments Clause and the 2006 MCA. The Appointments Clause provides that the President
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Crawford‘s appointment was entirely consistent with both the Constitution and the 2006 MCA: Section 948h allows the Secretary to select any official of the United States to serve as the Convening Authority, including mere employees. Moreover, the Convening Authority is an inferior officer. Because the 2006 MCA vests the Secretary with the power to appoint inferior officers by law, Crawford‘s appointment was constitutional.
A.
Al Bahlul argues that Crawford‘s appointment as Convening Authority violated the 2006 MCA because the Secretary may designate only an “officer or official of the United States.”
The 2006 MCA permits the Secretary to designate either officers or officials of the United States as the Convening
By contrast, and consistent with the constitutional background, Congress generally uses the word “officer” to refer to principal and inferior officers who must be appointed in accordance with the Appointments Clause. See Steele v. United States, 267 U.S. 505, 507 (1925) (explaining that it is usually “true that the words ‘officer of the United States,’ when employed in ... statutes ... have the limited constitutional meaning“). The 2006 MCA is no exception. The statute refers throughout to military officers by using explicit language like “commissioned officer of the armed forces.” See, e.g.,
Contrary to this plain meaning, Al Bahlul maintains that “officer or official of the United States” includes only officers in the constitutional sense. Yet this interpretation reads the word “official” out of the statute. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“A statute should be
Al Bahlul next cites
Here, the text is unambiguous: The Secretary may designate either an officer or an official of the United States, and the term official includes individuals who were mere employees prior to their designation. Thus, irrespective of whether Crawford was already an officer, her appointment as the Convening Authority did not violate the 2006 MCA.
B.
In addition to his statutory challenge to Crawford‘s appointment, Al Bahlul raises two constitutional challenges under the Appointments Clause. We start with his argument that Crawford‘s appointment by the Secretary was unconstitutional because the Convening Authority acts as a principal officer and therefore must be appointed by the President with Senate confirmation. Because other executive officers directed and supervised the Convening Authority‘s work, we hold that Crawford was an inferior officer and was therefore properly appointed by the Secretary.
Both the government and Al Bahlul agree that Crawford acted as an officer of the United States for purposes of the Appointments Clause. The parties dispute only whether she acted as a principal or inferior officer. The Supreme Court addressed the distinction between principal and inferior officers most directly in Edmond v. United States, 520 U.S. 651 (1997). The Court explained that “the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President: Whether one is an ‘inferior officer’ depends on whether he has a superior.” Id. at 662. More specifically, “‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Id. at 663; see also NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947 (2017) (Thomas, J., concurring) (“[A] principal officer is one who has no superior other than the President.“). Whether an officer is principal or inferior is a “highly contextual” inquiry requiring a close examination of the specific statutory framework in question. In re Al-Nashiri, 791 F.3d 71, 84 (D.C. Cir. 2015).
In order to determine whether an officer is inferior because he is supervised by a principal officer, our court looks to three factors drawn from Edmond: whether there is a sufficient “degree of oversight,” whether the officer has “final decision-making authority,” and the extent of the officer‘s “removability.” In re Grand Jury Investigation, 916 F.3d 1047, 1052 (D.C. Cir. 2019). Each of the three factors identified by Edmond and our subsequent cases indicates that the Convening Authority is an inferior officer. The Convening Authority‘s decisions are not final and are subject to review by the CMCR; the Secretary maintains additional oversight by promulgating rules and procedures; and the Convening Authority is removable at will by the Secretary.
First, the bulk of the Convening Authority‘s decisions are not final. Instead, they are subject to review by the CMCR. See
Similarly, in Intercollegiate Broadcasting System, Inc, v. Copyright Royalty Board, we determined that Copyright Royalty Judges were inferior officers, even though direct review of the Judges’ factual findings was also severely limited. 684 F.3d 1332, 1339 (D.C. Cir. 2012) (“[T]he Register‘s power to control the [Judges‘] resolution of pure issues of law plainly leaves vast discretion over the rates and terms.“). Nonetheless, after our court severed the Judges’ removal protections, we determined that they were inferior officers. Id. 1341-42 (“Although individual ... decisions will still not be directly reversible, the Librarian would be free to provide substantive input on non-factual issues. ... This, coupled with the threat of removal satisfies us that the [Copyright
Al Bahlul emphasizes that the CMCR is unable to review several of the Convening Authority‘s consequential powers. Most importantly, the Convening Authority has the power to modify charges, overturn a verdict, or commute a sentence, all of which are effectively unreviewable. See
the sentence in whole or in part.”). Once again, Edmond is closely analogous: The judges of the Court of Criminal Appeals have the power to “independently weigh the evidence” without “defer[ence] to the trial court’s factual findings.” See 520 U.S. at 662 (quotation marks omitted). If they decide to reverse the factual findings underlying a conviction, thus overturning the verdict, CAAF has no power to reverse that decision unless the evidence was insufficient as a matter of law. See id. at 665; Leak, 61 M.J. at 239. Although the Convening Authority may make some final decisions, that authority is consistent, as in Edmond, with being an inferior officer. See Edmond, 520 U.S. at 662 (emphasizing that the significance of the authority exercised by an officer does not necessarily determine whether he is principal or inferior, because all constitutional officers “exercis[e] significant authority on behalf of the United States”).
Second, the Secretary maintains a degree of oversight and control over the Convening Authority’s work through policies and regulations. The Secretary has the power to prescribe procedures and rules of evidence governing military commissions, including rules governing “post-trial procedures.”
Finally, the Convening Authority is removable at will by the Secretary. The 2006 MCA includes no explicit tenure provisions, and “[t]he long-standing rule relating to the removal power is that, in the face of congressional silence, the power of removal is incident to the power of appointment.” Kalaris v. Donovan, 697 F.2d 376, 401 (D.C. Cir. 1983); see also Oral Argument at 14:25 (Al Bahlul’s counsel conceding that “there’s no tenure protection” for the Convening Authority). As the Supreme Court concluded in Edmond, the “power to remove officers … is a powerful tool for control.” Edmond, 520 U.S. at 664.
Al Bahlul
Edmond requires that inferior officers have “some level” of direction and supervision by a principal officer, 520 U.S. at 663, not necessarily total control. Even inferior officers exercise discretion and important duties established by law. The Appointments Clause allows the appointment of such officers to be vested in a Head of Department so long as the proper chain of command is maintained. See 1 Annals of Cong. 499 (1789) (statement of James Madison) (explaining that the President may rely primarily on subordinates because “the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President,” establishing a “chain of dependence”). Here, the factors identified by the Supreme Court in Edmond establish that the Convening Authority is an inferior officer. As an inferior officer, Crawford’s appointment by the Secretary was perfectly consistent with the Appointments Clause.
C.
Even if the Convening Authority is an inferior officer, Al Bahlul argues that Crawford’s appointment violated the Appointments Clause because Section 948h does not vest the Secretary with the power to appoint an inferior officer. Al Bahlul Br. 28–34. According to Al Bahlul, Section 948h does no more than describe a duty that can be delegated to existing constitutional officers. He also argues that the 2006 MCA does not create “a freestanding office” to which an inferior officer could be appointed. Id. Contrary to Al Bahlul’s characterizations, the 2006 MCA’s conferral of the power to designate the Convening Authority was sufficient to vest the Secretary with the constitutional power to appoint an inferior officer.
Article II of the Constitution grants Congress broad power to “vest the Appointment of … inferior Officers” in “the Heads of Departments.”
Consistent with the Constitution’s requirement that Congress vest the power to appoint an officer “by law,” statutes “repeatedly and consistently distinguish[ ] between an office that would require a separate appointment and a position or duty to which one [can] be ‘assigned’ or ‘detailed’ by a superior.” Weiss v. United States, 510 U.S. 163, 172 (1994). While the explicit use of the term “appoint” may “suggest[ ]” whether a statute vests the appointment power, Edmond, 520 U.S. at 658, our court has held that Congress need not use explicit language to vest an appointment in someone other than the President. See In re Grand Jury, 916 F.3d at 1053–54; In re Sealed Case, 829 F.2d 50, 55 (D.C. Cir. 1987). Thus, reading the statute as a whole, we consider whether Congress in fact authorized a department head to appoint an inferior officer. Cf. In re Sealed Case, 829 F.2d at 55 (reading the statute as a whole and determining it “accommodat[ed] the delegation” of responsibilities by the Attorney General to a special counsel). Two features of the 2006 MCA suggest that Congress exercised its broad power to vest the appointment of the Convening Authority in the Secretary. First, after establishing and defining the office of the Convening Authority in considerable detail, Section 948h specifically provides that the Secretary will choose the person to fill that office. Second, because the text and structure of the statute are readily interpreted as a lawful exercise of Congress’s power to vest the appointment power in a department head, we decline to adopt an interpretation that would render the provision unconstitutional.
The text and structure of the 2006 MCA show that Congress established a new office—the Convening Authority—and tasked the Secretary with selecting the person to fill that office. By referring to the Convening Authority by name and using the definite article “the,” several sections of the 2006 MCA strongly suggest that the Convening Authority is a distinct office and not simply a duty to be performed by existing officers. See, e.g.,
Reading the statute as a whole, we conclude that in Section 948h Congress exercised its broad power under the Appointments and Necessary and Proper Clauses to create an office of the Convening Authority and to vest the power to appoint this inferior officer in the Secretary. Thus, Crawford’s appointment satisfied the requirements of the Constitution as well as the 2006 MCA.
IV.
Next, Al Bahlul asks the court to reconsider his ex post facto challenge to his conspiracy conviction, a challenge we reviewed for plain error in Al Bahlul I because it was forfeited below. See 767 F.3d at 18–27. The law-of-the-case doctrine dictates that “the same issue presented a second time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (emphasis omitted). The doctrine bars re-litigation “in the absence of extraordinary circumstances.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). We may reconsider a prior ruling in the same litigation if there has been “an intervening change in the law.” Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999). None of these limited circumstances are present here and therefore we cannot reconsider our forfeiture ruling in Al Bahlul I.
According to Al Bahlul, the Supreme Court’s decision in Class v. United States fundamentally changed the law of forfeiture and plain error review. See 138 S. Ct. 798 (2018). But Class’s holding was relatively narrow. The Supreme Court held that a criminal defendant who pleads guilty does not necessarily waive challenges to the constitutionality of the statute under which he is convicted. Id. at 803–05. The Court did not, however, hold that such claims are not waivable at all: The Court addressed only whether a guilty plea constitutes a waiver “by itself.” Id. at 803; see also id. at 805 (concluding that a “guilty plea does not bar a direct appeal in these circumstances”) (emphasis added). The Court twice emphasized that Class had not waived his objections through conduct other than his guilty plea, see id. at 802, 807, thus making clear that the Court was addressing only the effect of pleading guilty. Al Bahlul did not plead guilty, so Class is irrelevant to this case.
Taking a slightly different approach, Al Bahlul argues that even if a challenge to the constitutionality of the statute of conviction would be subject to forfeiture in the Article III context, it cannot be forfeited in the military context, where any fundamental defect in the document charging the accused with a crime deprives the military court of jurisdiction. Al Bahlul Br. 37–39 (citing United States v. Ryan, 5 M.J. 97, 101 (CMA 1978)). Even assuming arguendo that Al Bahlul has accurately characterized jurisdictional rules in the military context, he fails to identify an intervening change in the law that would support overturning Al Bahlul I: An ex post facto violation has been a constitutional defect since the Constitution’s ratification, and every source Al Bahlul cites for the proposition that military courts view jurisdiction differently predates Al Bahlul I. See id.
Finally, Al Bahlul argues that we should reconsider the en banc decision because the Department of Defense has purportedly changed its position on a material legal question. In Al Bahlul I, our court held that it was “not obvious” for the purposes of plain error review “that conspiracy was not traditionally triable by law-of-war military commission.” 767 F.3d at 27. Al Bahlul contends that the Department of Defense has since taken a position that is inconsistent with this court’s conclusion, albeit in non-binding materials such as the Law of War Manual. Al Bahlul Br. 40–42; see also Department of Defense, Law of War Manual § 1.1.1 (2015) (“This manual is not intended to, and does not, create any right … enforceable at law or in equity against the United States.”). Al Bahlul offers no support for the notion that a party’s change of position—in this case, one gleaned from non-binding internal documents—is one of the extraordinary circumstances warranting reconsideration of a court’s holding under the law-of-the-case doctrine.7
Furthermore, we rejected this ex post facto challenge in Al Bahlul I “for two independent and alternative reasons.” 767 F.3d at 18. Al Bahlul contends that the government changed its position on whether
Because Al Bahlul has failed to identify an intervening change of law or any other extraordinary circumstance, we decline to revisit the en banc court’s treatment of his ex post facto challenge to his conspiracy conviction.
V.
Finally, Al Bahlul argues that the manner in which the government is executing his sentence is unlawful. Specifically, he claims that the government has unlawfully subjected him to indefinite solitary confinement and that the government’s current policies wrongfully bar him from parole consideration. Al Bahlul’s challenges to the ongoing status of his confinement are outside our jurisdiction on direct appeal, which is limited to “determin[ing] the validity of a final judgment rendered by a military commission.”
In response, Al Bahlul emphasizes that CAAF has interpreted its analogous jurisdictional provision to permit consideration on direct review of whether the “approved sentence is being executed in a manner that offends the Eighth Amendment.” United States v. White, 54 M.J. 469, 472 (CAAF 2001). We recognize that “military courts are capable of, and indeed may have superior expertise in, considering challenges to their jurisdiction over disciplinary proceedings.” New v. Cohen, 129 F.3d 639, 645 (D.C. Cir. 1997). Yet we always have an independent obligation to determine whether our court’s jurisdiction is proper. Arbaugh v. Y&H Corp., 546 U.S. 500, 506–07 (2006). While we sometimes rely on parallels between the UCMJ and the 2006 MCA, an Article III court cannot assume jurisdiction by analogy to an Article II court’s interpretation of a different statute. The MCA permits us to act “only with respect to the findings and sentence as approved by the convening authority,”
* * *
For foregoing reasons, we affirm in part, reverse in part, and dismiss Al Bahlul’s petition in part for lack of jurisdiction. We remand for the CMCR to reevaluate Al Bahlul’s life sentence under the correct harmless error standards, but we reject Al Bahlul’s remaining challenges.
So ordered.