United States v. Weiss

36 M.J. 224, 1992 CMA LEXIS 839, 1992 WL 423828

• Court: United States Court of Military Appeals
• Decided: December 21, 1992
• Docket: No. 67,869; NMCM 89 4189
• Status: Published

Opinions

Opinion

GIERKE, Judge:

A military judge sitting as a special court-martial convicted appellant, consistent with his pleas, of stealing a racquetball glove from the base exchange, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The approved sentence provides for a bad-conduct discharge, confinement and partial forfeitures for 3 months. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated January 31, 1992.

This Court granted review of the following issue:¹

WHETHER APPELLANT’S COURT-MARTIAL LACKED JURISDICTION WHERE THE MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION, AND WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW WAS WITHOUT POWER TO REVIEW THIS CASE WHERE ITS JUDGES WERE DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

Appellant argues that military judges must be nominated by the President and confirmed by the Senate as military judges. The Government argues that military judges already have been nominated and confirmed as military officers, that military officers traditionally have performed judicial duties, and that military officers need not receive an additional appointment to perform judicial duties. We hold that the Constitution does not require that a military officer who meets the qualifications of Article 26, UCMJ, 10 USC § 826, receive a second appointment to perform the duties of a military judge. Likewise, we hold that a military officer meeting the qualifications of Article 66, UCMJ, 10 USC § 866, need not receive a second appointment to perform the duties of an appellate military judge.

I. Appointment of Officers of the United States

Article II, § 2, para. 2, clause 2 of the Constitution — 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.

The purpose of the Appointments Clause is twofold: (1) it protects the prerogative of the President from congressional encroachment on his power to appoint his subordinates; and (2) “it limits the universe of eligible recipients of the power to appoint.” Freytag v. Commissioner of Internal Revenue, 501 U.S. -, -, 111 S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991). Appellant argues that this second purpose, a limitation on the power to appoint, is violated by Articles 26 and 66 because they vest the appointment power in the Judge Advocate General rather than the President, the Courts of Law, or the head of a department.

The first question we must address is whether the Appointments Clause is applicable to the military justice system. Government counsel have not disputed this applicability of the Appointments Clause. Counsel for the United States Coast Guard, appearing as amicus curiae, argue that the Appointments Clause does not apply to the military justice system because that system is created pursuant to the plenary power of Congress “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U.S. Const, art. I, § 8, cl. 14, and that the Supreme Court grants great deference to Congress in the exercise of that power. See United States v. Kovac, 36 MJ 521, 522-23 (CGCMR 1992); United States v. Prive, 35 MJ 569, 573-77 (CGCMR 1992).

We agree that “[¡judicial deference ... is at its apogee” when the authority of Congress to govern the land and naval forces is challenged. Solorio v. United States, 483 U.S.435, 447, 107 S.Ct. 2924, 2931, 97 L.Ed.2d 364 (1987). Nevertheless, congressional authority to raise, support, and govern the armed forces is separate from the authority to appoint Officers of the United States. Judicial deference is granted only to the former, a legislative power conferred by Article I of the Constitution. The appointment of Officers of the United States is an Executive power, conferred by Article II and controlled by the Appointments Clause, from which the armed forces are not exempt, either expressly or by implication.

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court held that the plenary power of Congress over federal election practices did not exempt members of the Federal Election Commission from the Appointments Clause. The Supreme Court explained:

The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all Officers of the United States are to be appointed in accordance with the Clause____ No class or type of officer is excluded because of its special functions.

Id. at 132, 96 S.Ct. at 688. Thus, we are compelled to conclude that, while Congress may determine how the military justice system will operate, it may not exempt those who' will operate it-from the Appointments Clause. Accordingly, we hold that the Appointments Clause is applicable to the military justice system.

The next question is whether the duties imposed on military judges by Articles 26 and 66 must be performed by an Officer of the United States, as that term is used in the Appointments Clause. Appellant contends, and we agree, that judicial duties may be performed only by “Officers of the United States,” appointed in a manner consistent with the Appointments Clause. See Freytag v. C.I.R., 501 U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (special- trial judges of Tax Court); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931) (United States commissioners). See also Buckley v. Valeo, 424 U.S. at 126, 96 S.Ct. at 685 (“[A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States/ and must, therefore, be appointed” in accordance with the Appointments Clause.).

All military trial judges and most appellate military judges are commissioned officers of their respective armed forces. Commissioned officers of the armed forces are “Officers of the United States.” See Wood v. United States, 107 U.S. 414, 417, 2 S.Ct. 551, 554, 27 L.Ed. 542 (1888). All regular officers of the military services are appointed by the President and confirmed by the Senate. See 10 USC § 531; see also 14 USC §§ 211 and 212 regarding appointment of regular Coast Guard officers. Reserve officers above the grade of major/lieutenant commander are appointed by the President and confirmed by the Senate. See 10 USC §§ 593 and 5912. Active duty military officers are appointed and confirmed again upon each promotion to a grade above pay grade 0-3. See 10 USC § 624 (promotion of active-duty regular and reserve officers of the Army, Air Force, Navy, and Marine Corps).

If judicial duties may be performed only by Officers of the United States, and military officers are Officers of the United States, the next question is whether military officers may perform judicial duties without a new “judicial” appointment. In Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), the Supreme Court had occasion to consider the nature and scope of the office held by military officers. The Supreme Court held that two military officers, the Chief of Engineers and the Engineer Commissioner for the District of Columbia, did not require second appointments as members of a commission created by Congress to select land for Rock Creek Park in the District of Columbia, survey it, map it, and determine the just compensation to be paid by the United States upon its condemnation. Justice Shiras explained:

As, however, the two persons whose eligibility is questioned were at the time of the passage of the act and of their action under it officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate.

He went on to define “germane” broadly, observing:

It is true that it may be sometimes difficult to say whether a given duty, devolved by statute upon a named officer, has regard to the civil or military service of the United States. Wales v. Whitney, 114 U.S. 564, 569 [5 S.Ct. 1050, 1052, 29 L.Ed. 277 (1885)]; Smith v. Whitney, 116 U.S. 167, 179, 181 [6 S.Ct. 570, 576, 577, 29 L.Ed. 601 (1886) ]. But, in the present case, the duty which the military officers in question were called upon to perform cannot fairly be said to haye been dissimilar to, or outside of the sphere of, their official duties.

147 U.S. at 301, 13 S.Ct. at 391.

Appellant argues that “the offices already held by them” were the specific offices of Chief of Engineers and Engineer Commissioner for the District of Columbia, and not the underlying office of military officer. A careful reading of Shoemaker requires that we reject that argument for two reasons. First, Shoemaker specifically referred to “the duty which the military officers ... were called upon to perform.” (Emphasis added.) Second, the two cases cited in Shoemaker both dealt with the scope of military duties in general, not the specific duties of the positions held by the military officers. Wales addressed the question whether the medical duties of the Navy Surgeon General were “military” as opposed to “civil” duties. Smith addressed the issue whether the fiscal duties of the Navy Paymaster-General were of a civil or military nature.

The principle we glean from Shoemaker is that Congress may create a new office (e.g., Rock Creek Park Commissioner) and give a military officer the duties of that office without making a new appointment necessary, if the new duties are “germane” to the military duties of that officer. Applied to this case, it means that a second “judicial” appointment is not required if: (1) Congress did not create a new “office”; or (2) Congress created a new office, but the duties of that office are “germane” to the duties of the military officer detailed to perform them. A second appointment would be required if Congress created a new office and the duties of that office were not germane to the duties of the military officer detailed to perform them.

II. Military Judges

A court-martial is a temporary court, called into existence by a military order and dissolved when its purpose is accomplished. See Arts. 22, 23, and 24, UCMJ, 10 USC §§ 822, 823, and 824, respectively (prescribing who may convene courts-martial). Its constitutional origin is based on the congressional authority to govern the armed forces set out in Article 1, § 8, clause 14. As Colonel Winthrop explains, “Courts-martial of the United States, although their legal sanction is no less than that of the federal courts, being equally with these authorized by the Constitution, are, unlike these, not a portion of the Judiciary of the United States, and are thus not included among the ‘inferior’ courts which Congress ‘may from time to time ordain and establish.’ ” W. Winthrop, Military Law and Precedents 49 (2d ed. 1920 Reprint).

Military judges perform duties prescribed by statute and the executive order when detailed to a specific court-martial. See Art. 26; Exec. Order No. 12473, April 13, 1984, 49 Fed.Reg. 17,152 (promulgating the new Manual for Courts-Martial); RCM 801-1011, 1102, 1104, Manual for Courts-Martial, United States, 1984. Military judges have no inherent judicial authority separate from a court-martial to which they have been detailed. When they act, they do so as a court-martial, not as a military judge. Until detailed to a specific court-martial, they have no more authority than any other military officer of the same grade and rank. To the extent that they perform judicial duties such as authorizing searches and reviewing pretrial confinement, their authority is not inherent but is either delegated or granted by executive order. See Mil.R.Evid 315(d)(2), Manual, supra (military judge may authorize searches if authorized by regulations of Secretary of Defense or Secretary concerned); RCM 305(g) (military judge may release from confinement); RCM 305(i)(2) and RCM 305(j) (military judge may review propriety of pretrial confinement).

To resolve the granted issue with respect to military judges, we must answer two questions: (1) Did Article 26 create a new office of “military judge”?; and (2) If so, are the duties of the new office germane to the duties of the military officer detailed as a military judge of a general court-martial or special court-martial?

A. New Office

After examining the history and evolution of the military judge, set out in greater detail below, we conclude that Congress did not create a new “office” when it enacted: the Articles of War (AW) in 1920 (requiring that a “law member” be detailed to every general court-martial — AW 8); or the Uniform Code of Military Justice of 1950 (requiring detail of a “law officer” to every general court-martial — Art. 26, 50 USC § 590); or the Uniform Code of Military Justice of 1968 (redesignating the law officer as the military judge — Art. 26, 10 USC § 826).

As the position of military judge has evolved, the military judge has acquired virtually all the duties previously performed by the president and members of a court-martial.- Prior to the 1920 amendments to the Articles of War, the president of a court-martial, who usually was not a lawyer, presided over the trial. See para. 89, Manual for Courts-Martial, U.S. Army, 1917. In 1920, AW 8 was amended to require that a “law member” be detailed to general courts-martial in the Army. 41 Stat. 787, 788. AW 31 was amended in 1920 to transfer some duties of the president to the law member. It also provided that the law member ruled finally on questions of admissibility of evidence but could be overruled by a majority of the court members on other interlocutory questions. Until 1951, the Navy and Coast Guard continued the pre-1920 practice of using non-lawyers to preside over courts-martial and decide interlocutory questions. See §§ 381 and 370, Naval Courts and Boards, 1937; para. 385(t), Manual for Courts-Martial, U.S. Coast Guard, 1949 at 134.

When the Uniform Code of Military Justice, Pub.L. No. 81-506, 64 Stat. 108, codified in 50 USC §§ 551-736, recodified in 10 USC §§ 801-940 (1956), became effective in May 1951, the law member was redesignated as the law officer and additional duties were transferred from the president of the court to the law officer. All military services were required to “appoint” a law officer to general courts-martial. See Art. 26. Nonlawyers continued to preside over special courts-martial, Art. 51, UCMJ, 50 USC § 626, recodified in 10 USC § 851 (1956). This changed when the Military Justice Act of 1968, Pub.L. No. 90-632, § 2(9), 82 Stat. 1335,1336, became effective in August 1969.

The Military Justice Act of 1968 changed the title of the law officer to military judge, in order to increase his stature, and transferred more duties from the president of the court-martial to the military judge. See Art. 26, 82 Stat. 1336. Since the Act merely transferred authority and duties from one official of the court-martial to another and renamed the law officer, it did not create a new office.² As the Supreme Court explained in Shoemaker, “It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.” 147 U.S. at 301, 13 S.Ct. at 391.

The Military Justice Act of 1968 also amended Article 16, UCMJ, 10 USC § 816, to authorize an accused to request trial by a court-martial composed of only a military judge. 82 Stat. 1335. When trying a case without members, the military judge sits as a one-member court-martial. A one-member court-martial was not new to military justice. See Art. 16(3), UCMJ, 50 USC § 576 (1950), recodified in 10 USC § 816(3) (1956) (summary court-martial); AW 7 (1916) (summary court-martial); Art. 64(b), Articles for the Government of the Navy (AGN) (1909) (deck court). When sitting as a one-member general court-martial or special court-martial, the military judge’s authority is derived from the court-martial to which he is detailed, not from his status as a military judge. His authority is limited to that of the court-martial to which he has been detailed, and he may act only with respect to the cases referred to that court-martial. We conclude that the amendment of Article 16 did not create a new office but merely altered the composition of general courts-martial and special courts-martial.

Likewise, the amendment of Article 39(a), UCMJ, 10 USC § 839(a), effective in 1969, authorizing the military judge to hold sessions outside the presence of the members to dispose of interlocutory motions, arraign the accused, receive pleas, and dispose of other procedural matters not requiring the presence of the members, did not create a new office. The purpose and effect of Article 39(a) were to avoid wasting the time of the members by requiring them to sit idly by while the military judge disposed of legal and procedural issues. S.Rep. No. 1601, 90th Cong., 2d Sess. 10 (1968), U.S.Code Cong. & Admin.News 1968, 4501. Article 39(a) did not confer new duties on the military judge; it merely authorized him to discharge those duties without wasting the time of the court members.

Since a new office was not created by the Military Justice Act of 1968, a second “judicial” appointment was not necessary for military judges. Accordingly, we hold that the military judge in appellant’s case was not appointed in violation of the Appointments Clause.

B. Germane Duties

Assuming, arguendo, that a new office was created at some time during the evolution of the military judge, the result is the same, because the duties of the military judge are the same as those traditionally performed by military officers serving as members of courts-martial. As such, they are germane to the duties of a legally trained military officer. Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361. Just as the duties of a Rock Creek Park Commissioner were germane to the duties of a military engineer, presiding over courts-martial is clearly germane to the duties of a military lawyer. Accordingly, a new appointment would not be required even if a new office was created.

III. Appellate Military Judges

In order to resolve the granted issue with respect to appellate military judges, we must address three questions: (1) Did Congress create a new office?; (2) If Congress created a new office, are the duties of that office germane to the duties of the military officer detailed to perform them?; and (3) What is the significance of the provision in Article 66(a) authorizing civilian members on boards of review and their successors, the Courts of Military Review?

Appellant contends that Congress established a new office by creating an intermediate appellate court for each service. We hold that a new office was created when boards of review were established.

Prior to 1920, there were no appellate military courts. Appellate review of courts-martial was accomplished by a hierarchy of reviewing, supervisory, and confirming authorities, all of whom were military commanders, cabinet officers, or the President. In 1920, the Articles of War, applicable only to the Army, were amended by enactment of AW 5072, which mandated: “The Judge Advocate General shall constitute, in his office, a board of review consisting of not less than three officers of the Judge Advocate General’s Department.” The board of review was required to examine every record of trial involving a sentence which required “approval or confirmation by the President.” Furthermore, “execution of any ... sentence of a general court-martial involving the penalty of death, dismissal not suspended, dishonorable discharge not suspended, or confinement in a penitentiary,” required review by the board of review and the Judge Advocate General. If the Judge Advocate General disagreed with the decision of the board of review, the record would be transmitted to the Secretary of War for the action of the President. AW 5072. On the other hand, special courts-martial and summary courts-martial were reviewed only by the officer appointing the court. AW 36 (1920). After the 1948 amendments of the Articles of War, effective February 1,1949, certain Army and Air Force general court-martial cases were reviewed by a board of review, a Judicial Council composed of three general officers of the Judge Advocate General’s Corps, and the Judge Advocate General. See AW 50 (1948).

Prior to 1951, a Navy general court-martial was reviewed by “the commander of the fleet or officer ordering the court.” 53d AGN (1934). A summary court-martial (the counterpart of the modern special court-martial) was reviewed “by the officer ordering the court ... and by his immediate superior in command.” 32d AGN. A sentence “extending, to the loss of life, or to the dismissal of a commissioned or warrant officer” required confirmation by the President. 53d AGN. A deck court (the counterpart to the modern summary court-martial) was reviewed by the officer who ordered it. AGN 64(d). Reviewing authorities were required to examine jurisdictional issues, the legal sufficiency of the pleadings, objections to evidence, and the legal sufficiency of the evidence. See, e.g., § 472, Naval Courts and Boards, 1987.

Prior to 1951, a Coast Guard deck court was reviewed “by the officer ordering” it and then was forwarded to Coast Guard Headquarters, where it was “reviewed for legality ... with the same force and effect as though an appeal had been taken.” The Commandant of the Coast Guard was authorized to take whatever action “the interests of justice and equity may require.” The accused had a “right to appeal to the Secretary of the Treasury from a decision of a deck court.” Arts. 31 and 36, Manual for Courts-Martial, U.S. Coast Guard, 1949. All other courts-martial were reviewed by the Secretary of the Treasury, and the President in the case of dismissal of an officer. 14 USC § 564(d)(1949); Art. 140, Manual, USCG, supra. No Coast Guard court-martial could impose a sentence exceeding a discharge, confinement for 5 years, forfeiture, and reduction. 14 USC § 564(b) and (c); see Art. 50, Manual, USCG, supra.

After the Uniform Code of Military Justice became effective in 1951, convening authorities in all services retained the authority and responsibility to review the record of trial for legal sufficiency. See Art. 64, 50 USC § 651, recodified in 10 USC § 864 (1956) (“[T]he convening authority shall approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact....”).

The 1950 Code made boards of review mandatory for the Navy, Marine Corps, and Coast Guard. They were already mandatory for the Army by virtue of AW 50V2, enacted in 1920. This AW was made applicable to the Air Force by 62 Stat. 1014 (1948), codified in 5 USC § 627k (1948). Article 66(a) (1950) mandated:

The Judge Advocate General of each of the armed forces shall constitute in his office one or more boards of review, each composed of not less than three officers or civilians, each of whom shall be a member of the bar of a Federal court or of the highest court of a State of the United States.

Effective in 1969, Article 66(a) was revised to its present language, as follows:

Each Judge Advocate General shall establish a Court of Military Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges____ Appellate military judges who are assigned to a Court of Military Review may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State____

Boards of Review were a new entity, created by Congress for the Army in 1920, the Air Force in 1948, and the Naval services in 1951. For the first time, there was a level of formal appellate review beyond the officer who convened the general court-martial. Also, for the first time, a permanent military tribunal was established, as compared to courts-martial which are temporary entities. Article 66 vested no discretion in the Judge Advocates General; boards of review were mandatory. We are satisfied that Congress, acting indirectly through the Judge Advocates General, created a new office by establishing boards of review. Cf. Dettinger v. United States, 7 MJ 216 (CMA 1979) (Congress, acting through Judge Advocate General, created Court of Military Review).

Unlike the Court of Military Appeals, created in 1950 as an instrument of civilian oversight imposed upon the military services, the boards of review were intended as military tribunals constituted by competent military authority from within each service. The mandate to each Judge Advocate General to “constitute” boards of review was consistent with the traditional practice of vesting the authority and responsibility for constituting military tribunals in military officers and giving them the authority to appoint the members.

That Congress intended the boards of review to be tribunals of a different nature from the Court of Military Appeals is apparent both from the language of the statutes creating them and the legislative history. The statute first creating the Court of Military Appeals used traditional language for creating a civilian Article I court: “There is hereby established a Court of Military Appeals____” Art. 67(a)(1), 64 Stat. 129 (1950). In 1969 the provision was amended to read: “There is a United States Court of Military Appeals established under article I of the Constitution of the United States____” Finally, in Article 141, 10 USC § 941 (1989) Congress described the Court’s status as follows: “There is a court of record known as the United States Court of Military Appeals. The court is established under article I of the Constitution.” This is virtually the identical language used by Congress to create other Article I courts. See 26 USC § 7441 (“There is hereby established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court.”); 38 USC § 7251 (“There is hereby established, under Article I of the Constitution of the United States, a court of record to be known as the United States Court of Veterans Appeals.”). The language creating the boards of review was substantially different: “The Judge Advocate General of each of the armed forces shall constitute in his office one or more boards of review____” 50 USC § 653 (1950), recodified in 10 USC § 866 (1956).

This difference in language was not accidental. Indeed, in 1966, Senator Sam Ervin held hearings on a bill to establish a Court of Military Review in each service which would have been appointed by the service secretary and whose judges, both military and civilian, would have served for a fixed term of office. That bill used language similar to the organic statutes for the Court of Military Appeals, the Tax Court, and the Court of Veterans Appeals. It would have amended Article 66(a) to read: “There is established for each military department an appellate court____ Each such court is a court of record and shall be known as the Court of Military Review for the military department for which it is established.” Joint Hearings before the Sub-comm. on Constitutional Rights of the Senate Judiciary Comm, and the Special Sub-comm. of the Senate Armed Services Comm., 89th Cong., 2d Sess. 497-98 (1966). The bill was not enacted. Two years later, Article 66(a) in its present form was enacted.

The Senate Hearings on the 1950 Code reveal the intent of the drafters to use military expertise on the boards of review. The following exchange between Senator Kefauver and Professor Morgan is instructive:

SENATOR KEFAUVER.... May I ask at this point, was there any difference of opinion on the part of the committee or extensive discussion as to whether each service should have its own reviewing section?

MR. MORGAN. No; the committee was unanimous on that, so far as the board of review is concerned.

The notion was that each service would know more about the customs of the service, and all that sort of thing, and that the Judge Advocate General of that particular service would be the man that would be most competent to handle that thing from the point of view of this board of review, because the board of review, now, has very extensive powers.

Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the Senate Armed Services Comm., 81st Cong., 1st Sess. 42 (1949).

The amendments enacted in 1968 to Article 66(a) did not change the character or authority of the boards of review but merely completed the evolution by calling them what they were: appellate courts composed of appellate military judges. The legislative history of the 1968 amendment reflects that the redesignation of boards of review as Courts of Military Review was only a name change, designed to enhance the stature of the board of review by calling it a court and calling its members judges. This change was consistent with redesignating law officers as military judges. See S.Rep. No. 1601, 90th Cong., 2d Sess. 3, 14 (1968); The Army Lawyer: A History of The Judge Advocate General’s Corps, 1775-1975 at 247 (U.S. Govt. Printing Office). Certain organizational changes were mandated to improve efficiency and protect the independence of appellate military judges; but no new authority was conferred, no new duties imposed, and no new appointment procedures for appellate military judges were established.

Turning to the second question, we observe that military officers traditionally have been responsible for legal review of court-martial convictions in their capacities as reviewing and supervisory authorities. Prior to the creation of boards of review, military commanders were responsible for the legal review of courts-martial convened by them or their subordinates. See 53d AGN (1934) (record reviewed by “commander of the fleet or officer ordering the court”); 32d AGN (1934) (summary court-martial reviewed by “officer ordering the court” and “his immediate superior in command”); AW 46 and 47 (1920) (record reviewed by convening authority); para. 35, Manual for Courts-Martial, U.S. Coast Guard, 1949 (deck court reviewed by Commandant of Coast Guard); § 472, Naval Courts and Boards, 1937 (commander reviewing the record must examine jurisdictional issues, legal sufficiency of pleadings, objections to evidence, and legal sufficiency of evidence).

A cadre of legally trained officers existed in each of the services prior to 1920. The language of Article of War 50V2 and Article 66 of the Code reflect that Congress had this cadre of legally trained officers in mind when boards of review were first created in 1920 and extended to all the services in 1951. Congress considered the duties of the boards of review not only germane to military duties, but particularly appropriate for military lawyers. We hold that the duties of the newly-created boards of review were “germane” to the duties of the legally trained military officers contemplated by AW 50V2 and Article 66 of the Code; therefore, we hold that a second judicial appointment is unnecessary.

C. Civilian Members

Turning finally to the significance of the provision for civilian members, the legislative history of Article 66(a) reflects that the historical antecedent of the boards of review created by Article 66(a) was the Army board of review, composed of military officers, which was created by AW 50V2. The provision for civilian members was not included in AW 50V2, but was added to Article 66(a) at the request of the Coast Guard. During the 1949 hearings on the proposed Uniform Code of Military Justice, Mr. Larkin explained the provision for civilian members as follows:

Well, they were included initially at the request of the Coast Guard — not that it be worded this specific way but the Coast Guard does have civilian lawyers working in their court-martial procedures during peacetime, and they feel they are very competent.

They don’t have an unusually large number of officers in their review, and they wanted to be free if they desired to appoint a civilian lawyer working for the Coast Guard to a board of review. This was the easiest way to make that provision.

Hearings on H.R. 2498 before a Subcomm. of the House Armed Services Comm., 81st Cong., 1st Sess. 1189 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950).

In appellant’s case we need not decide whether Congress inadvertently exceeded its authority by vesting the powers of an “Officer of the United States” in civilians who had not been appointed in accordance with the Appointments Clause, because no civilians participated in the appellate review of his case. We regard the provision for civilian members of boards of review and their successors, the Courts of Military Review, as severable from the remainder of Article 66(a). Congress had two purposes in enacting Article 66(a). The primary purpose was to make boards of review mandatory for all services. The secondary purpose was to accommodate the Coast Guard by authorizing civilian members on boards of review. Where a statute attempts to accomplish two or more objects, it may be valid as to one and invalid as to others, as long as its purpose can be accomplished by the valid part and is not dependent upon or conditioned by the invalid part. Sutherland Stat. Const. § 44.07 at 503-04 (4th Ed.1986 Revision).

D. Conclusion

Applying the Shoemaker analysis to appellant’s case, we hold that appellate military judges need not be reappointed to perform judicial duties because judicial duties are “germane” to the offices already held by them as legally trained commissioned officers of their respective armed forces. Accordingly, we hold that appointment of the appellate military judges who reviewed appellant’s case was consistent with the Appointments Clause.

We have not addressed the desirability of a legislative requirement that trial and appellate military judges be specifically appointed as judges by the President, a Court of Law, or the Head of a Department, and we consider it inappropriate to do so. Congress has the power to require a second “judicial” appointment if considered desirable. Congress considered such a measure in 1966 but did not enact it. We decide only that a second “judicial” appointment was not constitutionally required for the trial and appellate judges involved in appellant’s case. As we stated in United States v. Henderson, 34 MJ 174, 178 (CMA 1992), “As a court ... we are not involved in the merits of ... policy. We interpret statutes, and we can strike them down only when they violate the Constitution.”

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Judge COX concurs.

1 . We also granted review of the following issue:

WHETHER THE COURT-MARTIAL WHICH TRIED THIS CASE HAD JURISDICTION WHERE THE MILITARY JUDGE WAS NOT APPOINTED TO A FIXED TERM OF OFFICE, AND WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW HAD POWER TO REVIEW AND AFFIRM THIS CASE WHERE ITS JUDGES WERE NOT APPOINTED TO A FIXED TERM OF OFFICE.

This issue was resolved adversely to appellant in United States v. Graf, 35 MJ 450 (CMA 1992).

2 . In United States v. Graf, supra, this Court said, in dicta, id. at 455, that Congress "created” the military judge and the Courts of Military Review by enacting the Military Justice Act of 1968. We did not intend this imprecise dicta to hold that Congress created a new “office” in 1969, when the Act became effective. Contrary to a dissenter’s assertion that this view demeans military judges (36 MJ at 260 (Wiss, J., dissenting)), we believe that our opinion merely recognizes the awesome life-and-death authority traditionally entrusted to military officers.