Lead Opinion
Opinion for the court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge HENDERSON.
Opinion concurring in the judgment in part and dissenting filed by Circuit Judge ROGERS.
Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge BROWN.
Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge KAVANAUGH.
On Petition for Rehearing En Banc
Ali Hamza Ahmad Suliman al Bahlul (Bahlul) served as a personal assistant to Osama bin Laden, produced propaganda videos for al Qaeda and assisted with preparations for the attacks of September 11, 2001 that killed thousands of Americans. Three months after 9/11, Bahlul was captured in Pakistan and transferred to the United States Naval Base at Guantanamo Bay, Cuba. Military prosecutors charged him with three crimes: conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. A military commission convicted him of all three crimes and sentenced him to life imprisonment. The United States Court of Military Commission Review (CMCR) affirmed his conviction and sentence. Bahlul appeals. For the reasons that follow, we reject Bahlul’s ex post facto challenge to his conspiracy conviction and remand that conviction to the original panel of this Court for it to dispose of several remaining issues. In addition, we vacate his material support and solicitation convictions.
I. Background
Bahlul is a native of Yemen. In the late 1990s, he traveled to Afghanistan to join al Qaeda. He completed military-like training while staying at an al Qaeda guesthouse and eventually met and pledged an oath of loyalty (“bayat”) to bin Laden. Bin Laden assigned Bahlul to work in al Qaeda’s media office.
On October 12, 2000, al Qaeda suicide bombers attacked the U.S.S. Cole, killing 17 American servicemen and wounding 39 others. Bin Laden later instructed Bahlul to create a video celebrating the attack for use as a recruiting tool. The video Bahlul produced (and bin Laden edited) includes
Bin Laden then appointed Bahlul as his personal assistant and secretary for public relations. Bahlul arranged the loyalty oaths of two of the 9/11 hijackers, Mohamed Atta and Ziad al Jarrah, and prepared their “martyr wills”—propaganda declarations documenting al Qaeda’s role in the attacks. Bahlul claims he sought to participate in the 9/11 attacks himself but bin Laden refused because he considered his media man too important to lose. In the days preceding 9/11, Bahlul assembled al Qaeda’s media equipment and evacuated al Qaeda’s Kandahar headquarters with bin Laden and other senior al Qaeda leaders. They traveled to a remote region of Afghanistan where, on September 11, 2001, they heard reports of the day’s attacks via a radio operated by Bahlul. Bin Laden subsequently asked Bahlul to research the economic effects of the attacks and report his findings.
In the following weeks, Bahlul fled to Pakistan. He was captured there in December 2001 and turned over to U.S. forces. In 2002, he was transferred to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has since been detained as an enemy combatant pursuant to the 2001 Authorization for Use of Military Force (AUMF). See Pub.L. No. 107-40, § 2(a), 115 Stat. 224, 224; Hamdi v. Rumsfeld,
Bahlul’s prosecution was stayed pending the outcome of another detainee’s challenge to the lawfulness of his trial by military commission. In Hamdan v. Rumsfeld, the United States Supreme Court held that the military commission procedures then in place contravened certain constraints imposed by the UCMJ and the four Geneva Conventions signed in 1949.
The Supreme Court has long recognized that unlawful enemy combatants may be prosecuted by military commission for their war crimes. See Hamdan,
In 2008, military prosecutors amended the charges against Bahlul to allege three of the offenses enumerated in the 2006 MCA based on the conduct summarized above-conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. See id. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). The conspiracy and solicitation charges alleged seven object crimes proscribed by the 2006 MCA: murder of protected persons, attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, terrorism and providing material support for terrorism. See id. § 950v(b)(l)-(3), (15)—(16), (24)-(25). Bahlul admitted all of the factual allegations against him, with the exception of the allegation that he had armed himself with a suicide belt to protect bin Laden. He nevertheless pleaded not guilty to the charged offenses because he denied the legitimacy of the military commission and sought to absent himself from the proceedings as a boycott. He objected to representation by appointed defense counsel and expressed a desire to proceed pro se, although his attempts to absent himself from the proceedings at times complicated matters and forced defense counsel to stand in for Bahlul and carry out his instructions not to present a defense. Bahlul waived all pretrial motions, asked no questions during voir dire, made no objections to prosecution evidence, presented no defense and declined to make opening and closing arguments.
The military commission convicted Bah-lul of all three offenses. Using a detailed findings worksheet, it found that Bahlul conspired to commit and solicited each of the seven alleged object offenses and that Bahlul committed ten of the eleven alleged overt acts. See Petitioner’s Appendix
While Bahlul’s appeal was pending, this Court held that the 2006 MCA “does not authorize retroactive prosecution for conduct committed before enactment of that Act unless the conduct was already prohibited under existing U.S. law as a war crime triable by military commission.” Hamdan v. United States (Hamdan II),
II. Standard of Review
Bahlul argues that the 2006 MCA must be construed to make triable by military commission only those crimes that were recognized under the international law of war when committed. He further contends that, if the 2006 MCA authorizes retroactive prosecution of new law-of-war offenses by military commission, his convictions violate the Ex Post Facto Clause. Bahlul made neither of these arguments before the military commission.
To preserve error for appellate review, an appellant must interpose a “timely” objection, United States v. Simpson,
The contemporaneous-objection rule is not mere “obeisance to ritual.” Miller,
To mitigate the sometimes harsh results of the forfeiture rule in criminal cases, the Congress authorizes the court of appeals to exercise its discretion to notice and correct a certain type of forfeited error: “plain error.” Fed.R.CRIm.P. 52(b); see United States v. Young,
Applying these principles here, we conclude that Bahlul forfeited the arguments he now raises. He flatly refused to participate in the military commission proceedings and instructed his trial counsel not to present a substantive defense. Although he objected to the commission’s authority to try him, his objection was couched entirely in political and religious terms. He disclaimed guilt and contended that “what [he] did was not a crime.” Trial Tr. 175. But context makes clear that Bahlul argued that his acts were not criminal because they were inspired by religious fervor. See id. at 175-76. After claiming that the United States had “put on the side[ ] the meaningless American laws” and “legislated new laws” for “the planet Earth,” he explained that he “believe[s] that no one has the right in the land to set laws for the people, the right of legislating laws[] is absolutely to Allah, the All Mighty.” Id. at 23-24. Bahlul did ask a “legal question” about whether the “law here by you stems from the action, before action, or post action,” id. at 104, but the military judge could not ascertain what Bahlul was asking and Bahlul did not elaborate. Bahlul’s objection to the commission’s authority was unquestionably “too general to have alerted the trial court to the substance of [his] point.” United States v. Bolla,
III. Statutory Analysis
As noted, Hamdan II held that the 2006 MCA “does not authorize retroactive prosecution for conduct committed before enactment of that Act unless the conduct was already prohibited under existing U.S. law as a war crime triable by military commission.”
The 2006 MCA confers jurisdiction on military commissions to try “any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.” 10 U.S.C. § 948d(a) (2006) (emphases added). “Any,” in this context, means “all.” See OxfoRD English Dictionary 539 (2d ed.1989) (“indifference as to the particular one or ones that may be selected”); see also Dep’t of Housing & Urban Dev. v. Rucker,
Review of the inter-branch dialogue which brought about the 2006 MCA confirms the Congress’s intent to apply all of the statute’s enumerated crimes retroactively. See Boumediene v. Bush,
The Congress answered the Court’s invitation with the 2006 MCA, which provides the President the very power he sought to exercise in Hamdan—the power to try the 9/11 perpetrators for conspiracy—by including conspiracy as an offense triable by military commission, 10 U.S.C. § 950v(b)(28) (2006), and by conferring jurisdiction on military commissions to try alien unlawful enemy combatants for conspiracy based on conduct that occurred “before, on, or after September 11, 2001,” id. § 948d(a). We must heed this inter-branch dialogue, as Boumediene instructs.
If this sounds familiar, it does so because it mirrors a second game of interpretive ping-pong begun in Hamdan. There, the Court also addressed the Government’s contention that section 1005(e)(1) of the Detainee Treatment Act of 2005(DTA), Pub.L. 109-148, 119 Stat. 2739, 2741-42—enacted after the Court’s grant of certiorari in Hamdan—ousted it of jurisdiction to entertain Hamdan’s habe-as petition. Hamdan,
The Congress returned serve in the 2006 MCA. Section 7(b) clarified that the bar to habeas jurisdiction applied to “all cases, without exception, pending on or after the date” of the statute’s enactment. 2006 MCA, § 7(b),
*14 If the Court invokes a clear statement rule to advise that certain statutory interpretations are favored in order to avoid constitutional difficulties, Congress can make an informed legislative choice either to amend the statute or to retain its existing text. If Congress amends, its intent must be respected even if a difficult constitutional question is presented. The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one; and the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case. If this ongoing dialogue between and among the branches of Government is to be respected, we cannot ignore that the MCA was a direct response to Hamdan’s holding that the DTA’s jurisdiction-stripping provision had no application to pending cases.
Id. at 738,
The same thing happened here. In enacting the military commission provisions of the 2006 MCA, the Congress plainly intended to give the President the power which Hamdan held it had not previously supplied—just as the 2006 MCA clarified that in fact the Congress did intend section 7(b)’s ouster of habeas jurisdiction to apply to pending cases. The legislative history confirms this view. See Bourne-diene,
Reading the MCA in this context and given the unequivocal nature of its jurisdictional grant, we conclude the 2006 MCA unambiguously authorizes Bahlul’s prosecution for the charged offenses based on pre-2006 conduct.
B. The Avoidance Canon is Inapplicable
Hamdan II’s contrary conclusion turned on the following provision of the 2006 MCA:
(a) PüRpose.—The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.
(b) EpfeCt.—Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.
10 U.S.C. § 950p (2006). In Hamdan II, the Court read this provision to reflect the Congress’s “belie[f| that the Act codified no new crimes and thus posed no ex post facto problem.”
The “avoidance canon” reflects a fundamental principle of judicial restraint. See Ashwander v. TVA
Hamdan II perceived a “tight causal link between (i) Congrеss’s belief that the statute codified only crimes under pre-existing law and (ii) Congress’s statement that the new statute could therefore apply to conduct before enactment.”
The “ambiguity” Hamdan II identified was the Congress’s failure to address what it “would ... have wanted” if it “had known that the Act was codifying some new crimes.”
Moreover, the avoidance canon ordinarily requires no speculation into the Congress’s hypothetical intent: If the statute’s text is ambiguous, we choose a constitutional construction over an unconstitutional one. Here, however, the “ambiguity” lies not in the text itself but in the text when read in light of Hamdan
Even if it may raise difficult constitutional questions, the statutory text remains the gravamen of our interpretive inquiry. See United States v. Raynor,
IV. Bahlul’s Ex Post Facto Challenge
Because the Congress’s intent to authorize retroactive prosecution of the charged offenses is clear, we must address Bahlul’s ex post facto argument. See Cohens v. Virginia,
The Constitution prohibits the Congress from enacting any “ex post facto Law.” U.S. Const, art. I, § 9, cl. 3. “The phrase ex post facto law was a term of art with an established meaning at the time of the framing.” Peugh v. United States, — U.S. -,
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punish*18 ment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
In our order granting en banc review, we asked the parties to brief whether the Ex Post Facto Clause applies in cases involving aliens detained at Guantanamo. The Government has taken the position that it does. Although we are not obligated to accept the Government’s concession, see Young v. United States,
A. Conspiracy
We reject Bahlul’s ex post facto challenge to his conspiracy conviction for two independent and alternative reasons. First, the conduct for which he was convicted was already criminalized under 18 U.S.C. § 2332(b) (section 2332(b)) when Bahlul engaged in it. It is not “plain” that it violates the Ex Post Facto Clause to try a pre-existing federal criminal offense in a military commission and any difference between the elements of that offense and the conspiracy charge in the 2006 MCA does not seriously affect the fairness, integrity or public reputation of judicial proceedings. Second, it is not “plain” that conspiracy was not already triable by law-of-war military commission under 10 U.S.C. § 821 when Bahlul’s conduct occurred.
1. Section 2332(b)
Bahlul was convicted of conspiracy to commit seven war crimes enumerated in the 2006 MCA, including the murder of protected persons.
The right to be tried in a particular forum is not the sort of right the Ex Post Facto Clause protects. See Collins,
Similarly, in Cook v. United States, the Court held that an act vesting jurisdiction over a crime in a newly formed judicial district does not violate the Ex Post Facto Clause because “[i]t only ... subjects the accused to trial in th[e new] district rather than in the court of some other judicial district established by the government against whose laws the offense was committed. This does not alter the situation of the defendants in respect to their offense or its consequences.”
It is therefore not a plain ex post facto violation to transfer jurisdiction over a crime from an Article III court to a military commission because such a transfer does not have anything to do with the definition of the crime, the defenses or the punishment. That is so regardless of the
Our inquiry is not ended, however, because the 2006 MCA conspiracy-to-murder-protected-persons charge and section 2332(b) do not have identical elements. The difference is a potential problem because the Ex Post Facto Clause prohibits “retrospectively eliminating an element of the offense” and thus “subverting] the presumption of innocence by reducing the number of elements [the government] must prove to overcome that presumption.” Carmell,
In Johnson v. United States, the Supreme Court reviewed a defendant’s conviction for perjury where the district court had decided the issue of materiality itself rather than submit that issue to the jury, as the Court’s precedent requires.
Here, the evidence of the two missing elements was not simply “overwhelming” and “essentially uncontroverted”—it was entirely uncontroverted. Bahlul was charged with committing numerous overt acts “in Afghanistan, Pakistan and elsewhere” that furthered the conspiracy’s unlawful objects; those objects included the murder of protected persons. App. 122-25. He did not dispute that his conduct occurred outside the United States nor did he dispute that the purpose of the conspiracy was to murder United States nationals. See Trial Tr. 167 (Bahlul: “And what I did ... is to kill Americans....”); id. at 511— 12 (“[Bahlul] does not consider anybody protected personfs] or civilians.... [A]s long as you’re a[n] American, you are a target.”). Indeed, several witnesses testified that Bahlul considered all Americans to be targets. Id. at 503, 512, 596, 653. The commission was instructed on the
2. Section 821
When Bahlul committed the crimes of which he was convicted, section 821 granted—and still grants—military commissions jurisdiction “with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions.” 10 U.S.C. § 821. Section 821 and its predecessor statute have been on the books for nearly a century. See Pub.L. No. 64-242, 39 Stat. 619, 653 (1916); Pub.L. No. 66-242, 41 Stat. 759, 790 (1920); Pub.L. No. 81-506, 64 Stat. 107, 115 (1950); Madsen v. Kinsella,
In answering this question, we do not write on a clean slate. In Hamdan, seven justices of the Supreme Court debated the question at length. Four justices concluded that conspiracy is not triable by military commission under section 821.
The reason for the uncertainty is not only the divided result in Hamdan but also the High Court’s failure to clearly resolve a subsidiary question: What body of law is encompassed by section 821’s reference to the “law of war”? That dispute takes center stage here. Bahlul contends that “law of war” means the international law of war, full stop. The Government contends that we must look not only to international
In Hamdan II, the Court said that “law of war” as used in section 821 is a term of art that refers to the international law of war.
On the other hand, section 821 might not be so limited (as two of our colleagues would hold on de novo review). See Brown Op. 52; Kavanaugh Op. 65-68; see also Hamdan,
Ultimately, we need not resolve de novo whether section 821 is limited to the international law of war. It is sufficient for our purpose to say that, at the time of this appeal, the answer to that question is not “obvious.” Olano,
Most notably, the individuals responsible for the assassination of President Abraham Lincoln were charged with a single offense—“combining, confederating, and conspiring ... to kill and murder ... Abraham Lincoln”—and were convicted of that offense by military commission. General Court-Martial Order No. 356, War Dep’t (July 5, 1865), reprinted in H.R. DOC. NO. 55-314, at 696 (1899).
Either way, the Lincoln conspirators’ trial was a matter of paramount national importance and attracted intense public scrutiny. Thus, when the Congress enacted section 821’s predecessor—and “preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commissions,” Hamdan,
We do not hold that these precedents conclusively establish conspiracy as an offense triable by military commission under section 821. After all, four justices examined the same precedents and found them insufficiently clear. Hamdan,
B. Material Support
A different result obtains, however, regarding Bahlul’s conviction of providing material support for terrorism.
The Government relies solely on a number of Civil War-era field orders approving military commission convictions of various offenses that, the Government contends, are analogous to material support. Before delving into the specifics of the orders, we note our skepticism that such informal field precedent can serve as the sole basis for concluding that a particular offense is triable by a law-of-war military commission. Unlike the Lincoln conspirators’ and Nazi saboteurs’ cases, which attracted national attention and reflected the deliberations of highest-level Executive Branch officials, the field precedents are terse recordings of drumhead justice executed on or near the battlefield. Indeed, several precedents cited by the Government for trying material support and solicitation under the “law of war” were issued by the same 1862 military commission that tried one Henry Willing for the offense of “[b]eing a bad and dangerous man.” G.O. No. 19, HQ, Dep’t of the Mississippi (Apr. 24, 1862), 1 The Wae of the Rebellion, Official ReooRds of the Union and ConfedeRate Abmies (OR) ser. II, at 480-81. In addition, the military commissions these orders memorialize were not always models of due process.
In any event, even if the law of war can be derived from field precedents alone, none of the cited orders charges the precise offense alleged here—providing material support for terrorism. The Government nonetheless contends that the material support charge “prohibits the same conduct, under a modern label, as the traditional offense of joining with or providing aid to guerrillas and other unlawful belligerents.” E.B. Br. of United States 48. But we do not think the cited field orders establish that such conduct was tried by law-of-war military commissions during the Civil War.
First, every precedent cited by the Government involves offenses committed in Missouri, a border state; none is from a state that seceded. See Dow v. Johnson,
Second, several of the cited field orders appear to involve offenses more akin to aiding and abetting a law-of-war violation. See, e.g., G.O. No. 19, HQ, Dep’t of the Mississippi (Apr. 24, 1862), 1 OR ser. II, at 478 (Matthew Thompson convicted of “joining with, aiding and assisting [a] band [of desperadoes] in the commission of acts of plunder, robbery and abuse of the citizens of the State of Missouri”). Aiding and abetting is a theory of criminal liability, not a stand-alone offense like material support. See Ali,
Third, other orders appear to involve the offense of unlawful belligerency—that is, directly waging guerrilla warfare. See, e.g., G.O. No. 15, HQ, Dep’t of the Mississippi (Apr. 3, 1862), 1 OR ser. II, at 472-476 (approving convictions of several men who each, not “being a soldier belonging to any lawfully authorized and organized military forces at war with the United States,” “t[ook] up arms as an insurgent and committed] acts of hostility against” United States military forces); G.O. No. 9, HQ, Dep’t of the Mississippi (Mar. 25, 1862), 1 OR ser. II, at 464-65 (William Kirk convicted of “belonging] to a marauding or guerrilla band” that “did unlawfully plunder and take away a certain yoke of oxen, wagon and other property”); see also Instructions for the Government of Armies of the United States in the Field, G.O. No. 100, art. 82 (Apr. 24, 1863); Winthrop, MilitaRY Law and Precedents, supra, at 840.
The upshot is that the Civil War field precedent is too distinguishable and imprecise to provide the sole basis for concluding that providing material support for terrorism was triable by law-of-war military commission at the time of Bahlul’s conduct.
C. Solicitation
We аlso conclude that solicitation of others to commit war crimes is plainly not an offense traditionally triable by military commission.
As noted, we are skeptical that field orders can be the sole basis for military commission jurisdiction over a particular offense. See supra p. 27. Moreover, the two field orders discussed fall far short of meeting any showing we would require. Because solicitation to commit war crimes was not an offense triable by law-of-war military commission when Bahlul’s conduct occurred, it is a plain ex post facto violation—again, assuming without deciding that the protection of the Ex Post Facto Clause extends to Bahlul, see supra pp. 17-18—to try him by military commission for that new offense. See Collins, 497 U.S.
V. Remaining Issues
In his brief to the panel, Bahlul raised four challenges to his convictions that we have not addressed here. He argued that (1) the Congress exceeded its Article I, § 8 authority by defining crimes triable by military commission that are not offenses under the international law of war, see Br. for Bahlul 38, Bahlul v. United States, No. 11-1324 (D.C.Cir. Mar. 9, 2012); (2) the Congress violated Article III by vesting military commissions with jurisdiction to try crimes that are not offenses under the international law of war, see id. at 39-40; (3) his convictions violate the First Amendment, see id. at 43; and (4) the 2006 MCA discriminates against aliens in violation of the equal protection component of the Due Process Clause, see id. at 54. We intended neither the en banc briefing nor argument to address these four issues. See Order, Bahlul v. United States, No. 11-1324 (D.C.Cir. May 2, 2013) (notifying parties that Equal Protection and First Amendment issues are not “within the scope of the rehearing en banc”). And with the exception of a few passages regarding the first two, we received none from the parties. We therefore remand the case to the original panel of this Court to dispose of Bahlul’s remaining challenges to his conspiracy conviction. See United States v. McCoy,
For the foregoing reasons, we reject Bahlul’s ex post facto challenge to his conspiracy conviction and remand that conviction to the panel to consider his alternative challenges thereto. In addition, we vacate Bahlul’s convictions of providing material support for terrorism and solicitation of others to commit war crimes, and, after panel consideration, remand to the CMCR to determine the effect, if any, of the two vacaturs on sentencing.
So ordered.
Notes
. The Military Commissions Act of 2009 rewrote the 2006 MCA but left it substantively unaltered as relevant here. See National Defense Authorization Act for Fiscal Year 2010, Pub.L. No. 111-84, §§ 1801-07, 123 Stat. 2190, 2574-2614 (codified at 10 U.S.C. §§ 948a-950t (Supp. Ill 2010)). Unless otherwise noted, we refer to the 2006 MCA.
. The military commission specifically found that Bahlul committed the following overt acts: (1) traveled to Afghanistan with the purpose and intent of joining al Qaeda; (2) met with Saif al Adi, the head of the al Qaeda Security Committee, as a step toward joining al Qaeda; (3) underwent military-type training at an al Qaeda sponsored training camp located in Afghanistan; (4) pledged fealty or "bayat” to the leader of al Qaeda, Osama bin Laden, joined al Qaeda and provided personal services in support of al Qaeda; (5) prepared and assisted in the preparation of various propaganda products, including the video "The Destruction of the American Destroyer U.S.S. Cole,” to solicit material support for al Qaeda, to recruit to and indoctrinate personnel about the organization and objectives of al Qaeda and to solicit, incite and advise persons to commit terrorism; (6) acted as personal secretary and media secretary of bin Laden in support of al Qaeda; (7) arranged for Mohamed Atta and Ziad al Jarrah to pledge fealty оr "bayat” to bin Laden; (8) prepared the propaganda declarations styled as martyr wills of Atta and al Jarrah in preparation for the acts of terrorism perpetrated by Atta, al Jarrah and others at various locations in the United States on September 11, 2001; (9) at the direction of bin Laden, researched the economic effect of the 9/11 attacks on the United States and provided the results of that research to bin Laden; and (10) operated and maintained data processing equipment and media communications equipment for the benefit of bin Laden and other members of the al Qaeda leadership. App. 132-33; see also id. at 122-23 (charging document).
. Under the 2006 MCA, a military commission "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.” 10 U.S.C. § 948h. Crawford, a former judge of the United States Court of Appeals for the Armed Forces, was so designated by the Defense Secretary. The convening authority refers the charges against the accused for trial by military commission, details the members of the commission and approves or disapproves the findings and sentence of the commission. Id. §§ 948i(b), 950b; cf. Hamdan,
. We need not decide whether Rule 52(b) applies directly to this proceeding because plain-error review is appropriate whether or not Rule 52(b) directly governs. See Salazar,
. The Government argued for plain-error review before the CMCR, in its original brief to a panel of this Court and in its brief to the en banc court. See Bahlul,
. Three of our colleagues cite Rules 905 and 907 of the Rules of Military Commissions for the notion that Bahlul’s ex post facto argument is "not forfeitable.” Opinion of Judge Kavanaugh (Kavanaugh Op.) 78; accord Opinion of Judge Rogers (Rogers Op.) 48-49; Opinion of Judge Brown (Brown Op.) 51. Bahlul's briefs do not mention these rules or suggest this argument. Moreover, Rules 905 and 907 both explicitly refer to waiver, see Manual for Military Commissions, pt. II, at 83-84, 87 (2007), whereas we conclude instead that Bahlul forfeited his argument. "Although jurists often use the words interchangeably,” Kontrick v. Ryan,
. Although perhaps uncommon, overruling our precedent on plain-error review is within the authority of the en banc court. See, e.g.,
. The legislative history is overwhelmingly in favor of retroactive application of the MCA’s provisions as a response to Hamdan. See, e.g., 152 Cong. Rec. H7533 (daily ed. Sept. 27, 2006) (statement of Rep. Hunter) ("I can't think of a better way to honor the fifth anniversary of September 11 than by establishing a system to prosecute the terrorists who on that day murdered thousands of innocent civilians _”); id. ("Without [the 2006 MCA], the United States has no effective means to try and punish the perpetrators of September 11, the attack on the USS Cole and the embassy bombings.”); id. at H7536 (statement of Rep. Saxton) ("We have carefully narrowed and crafted the provisions of this bill to enable the United States to prosecute the perpetrators of the 1998 bombings of the American embassies in Kenya and Tanzania, the 2000 attack on the USS Cole, and other crimes that have been committed.”); id. ("Importantly, this bill allows, as all Americans believe it should, the criminal prosecutions of those who purposefully and materially supported [the 9/11 conspiracy].”); id. at H7545 (statement of Rep. Sensenbrenner) ("[The 2006 MCA] is about prosecuting the most dangerous terrorists America has ever confronted ... like Khalid Sheik Mohamed, the mаstermind of the 9/11 attacks, or Ahbd al-Nashiri, who planned the attack on the USS Cole.”); id. at H7552 (statement of Rep. Boehner); id. at S10243 (statement of Sen. Frist) ("Until Congress passes [the 2006 MCA], terrorists such as Khalid Shaikh Mohamed cannot be tried for war crimes .... ”); cf. id. at H7536 (statement of Rep. Skelton) (opposing 2006 MCA because it “creates” "ex post facto laws”).
. Were we to decide this issue de novo, Judge Henderson would conclude that the Ex Post Facto Clause does not apply in cases involving aliens detained at Guantanamo, for the reasons stated in her separate concurring opinion. Chief Judge Garland and Judges Tatel and Griffith would conclude that the Clause does apply in such cases, for the reasons stated in the first two paragraphs of Part II.B of Judge Rogers's opinion and in Note 3 of Judge Kavanaugh’s opinion.
. Specifically, the 2006 MCA provides: “Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished....” 10 U.S.C. § 950v(b)(28). The murder of protected persons is the "intentional! ]” killing of one or more "protected persons.” Id. § 950v(b)(l). A protected person is "any person entitled to protection under one or more of the Geneva Conventions, including ... civilians not taking an active part in hostilities.” Id. § 950v(a)(2)(A).
. Likewise, the greater maximum sentence provided in the 2006 MCA—the death penalty, as opposed to a maximum of life imprisonment under section 2332(b)—does not present an ex post facto problem. The Government did not seek the death penalty, see Trial Tr. 958, and the military judge's instructions to the commission before sentencing specifically declared that "[t]he maximum punishment that may be adjudged in this case is confinement for life,” id. at 949. Further, the 2006 MCA requires a 12-member military commission if the death penalty is sought, see 10 U.S.C. § 949m(c), and Bahlul’s commission had only nine members, see Trial Tr. 285. There was therefore no risk that the greater sentence included in the 2006 MCA affected Bahlul's sentence. See Peugh,
. To be clear, Bahlul was convicted of conspiracy as a stand-alone offense that does not depend upon the completion of an object offense. See Trial Tr. 848. He was not charged with conspiracy as a theory of liability for a completed crime. See Trial Tr. 109-12 (Government amended charge by striking allegation that Bahlul joined "an enterprise of persons who share the common criminal purpose that involved ... the commission ... of one or more substantive offenses”); see also United States v. Ali,
. The Hamdan plurality did not expressly decide whether section 821's reference to the "law of war” is limited to the international law of war. See Hamdan,
. The Hamdan plurality interpreted this precedent as convicting the conspirators only of the completed offense of assassination, not inchoate conspiracy. Hamdan,
. Some doubt about the precise nature of the charge also appears in the transcript of the conspirators' trial. Thomas Ewing, counsel for several of the defendants, objected to the ambiguity of the charge, stating that “[tjhere is but one charge, in form, against the accused; but, in fact, there seem to be four charges, each alleging the commission of a separate and distinct offense.” The Assassination of President Lincoln and the Trial of the Conspirators, supra, at 244. He listed what he perceived to be the four offenses charged: conspiracy, traitorously murdering President Lincoln, traitorously assaulting with intent to kill Secretary of State William Seward and lying in wait with intent to traitorously murder then-Vice President Johnson. Id. at 244— 45. The Judge Advocate responded that "[t]he general allegation is a conspiracy” and that ”[t]he pleadings proceed, after averring this conspiracy, ... to set forth clearly and specifically the part which it is believed and alleged each one of them took in the execution of that conspiracy.” Id. at 245; see also id. at 246-47 (further discussion of the charge).
. William Winthrop—the Blackstone of military law—also concluded that conspiracy is an offense that is "both a crime against society and a violation of the laws of war.” Winthrop, Military Law and Precedents, supra, at 842; accord William Winthrop, A Digest of Opinions of the Judge Advocate General of the Army 328-29 (1880) ("[cjonspiracy by two or
. The Hamdan plurality thought Quirin suggested "that conspiracy is not a violation of the law of war” because the Court's "analysis ... placed special emphasis on the completion of [another charged] offense; it took seriously the saboteurs' argument that there can be no violation of a law of war—at least not one triable by militaiy commission—without the actual commission of ... a 'hostile and warlike act.’ ”
. The 2006 MCA provides: "Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism ..., or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism ..., shall be punished....” 10 U.S.C. § 950v(b)(25). The provision cross-references the Act’s prohibition of "terrorism,” which is defined as an act that “kills or inflicts great bodily harm on one or more protected persons, or ... that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct.” Id. § 950v(b)(24).
. See Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L.Rev. 609, 625 (2012);
. See also Hamdan,
. In reviewing this Civil War precedent, we hold only that it does not sanction trying material support by military commission.
. Even the Government is dubious of its argument: Executive Branch officials previously acknowledged in prepared congressional testimony that "there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war.” Legal Issues Regarding Military Commissions and the Trial of Detainees for Violations of the Law of War: Hearing Before the S. Comm, on Armed Services, 111th Cong. 12 (2009) (statement of David Kris, Assistant Attorney General, National Security Division, Department of Justice); see also id. at 9 (statement of Jeh Johnson, General Counsel, Department of Defense) (“After careful study, the administration has concluded that appellate courts may find that 'material support for terrorism’—an offense that is also found in Title 18—is not a traditional violation of the law of war.”).
. Unlike with conspiracy, the Government has not identified a pre-existing federal criminal statute that might cure any ex post facto aspect of Bahlul’s material support conviction. The Government cites 18 U.S.C. § 2339A, which criminalizes providing material support or resources knowing they are to be used in a violation of section 2332, but that offense was not made extraterritorial until October 26, 2001. See Pub.L. No. 107-56, § 805(a)(1)(A), 115 Stat. 272, 377. Although Bahlul was not captured until December 2001, nearly all of the conduct of which he was convicted took place before September 11, 2001. The only overt act that necessarily occurred after September 11 was Bahlul’s research on the economic effects of the attack. The record does not reflect, however, whether Bahlul committed that or any other act of material support constituting a violation of section 2339A after October 26, 2001. This charge, then, is unlike the conspiracy charge, where Bahlul expressly conceded and the jury necessarily found the two omitted elements.
. The 2006 MCA provides: "Any person subject to this chapter who solicits or advises another or others to commit one or more substantive offenses triable by military commission under this chapter shall ... be punished....” 10 U.S.C. § 950u.
. As with material support, we cannot conclude that a preexisting federal statute might cure any ex post facto aspect of Bahlul's solicitation conviction. The Government notes that, when Bahlul's conduct occurred, 18 U.S.C. § 373 criminalized solicitation of another person to "engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another.” The Government’s brief does not identify an offense that Bahlul solicited, however, which it must do for us to compare the elements of a pre-existing criminal offense with the elements of the charge under the MCA.
Concurrence Opinion
concurring:
I write separately to emphasize, for me, the critical nature of the Government’s concession that the Ex Post Facto Clause protects Bahlul. Had the Government not conceded the рoint and the Court not decided to act on the concession, cf. Young v. United States,
I. It Is Not “Plain” That the Ex Post Facto Clause Protects Bahlul
“ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” United States v. Olano,
Bahlul contends that his convictions are unconstitutional because the 2006 MCA, as applied to him, is an ex post facto law. Even assuming that Bahlul is correct, the error is not plain because there is no holding by any court that an unlawful alien enemy combatant detained abroad is entitled to the protections of the Ex Post Facto Clause. Before Boumediene, Johnson v. Eisentrager,
In Boumediene, the Supreme Court for the first time in our history extended a constitutional protection to an alien located outside the sovereign territory of the United States.
Bahlul points to no case from the Supreme Court or any court of appeals, nor to any other “absolutely clear” legal norm, opining that the Ex Post Facto Clause applies beyond the sovereign territory of the United States. Finding such a precedent would be a remarkable feat inasmuch as Boumediene expressly recognized that it was the first case to apply any constitutional provision to aliens located beyond our sovereign territory: “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”
II. The Ex Post Facto Clause Does Not Protect Bahlul
Even if our review were de novo, I would conclude that the Ex Post Facto Clause does not apply to aliens detained at Guantanamo. As discussed above, only one constitutional protection applies to Guantanamo even after Boumediene.
Finally, we must remember the who, what and where of this case. Bahlul is an alien unlawful enemy combatant who—like
Accordingly, were it not for the Government’s concession that the Ex Post Facto Clause protects Bahlul, I would reach the issue and conclude that it does not.
. Responding briefly to Judge Kavanaugh's concurrence, and with respect, I believe he is a solo source of confusion. He persists in reading the majority opinion to resuscitate Hamdan II. Cf. Kavanaugh Op. 63. He is wrong. I leave it to the careful reader to discern, not surprisingly, that the majority expressly oveirules Hamdan II’s statutory holding. See Majority Op. 11. Judge Kava-naugh then pivots, calling the majority’s decision to "’overrule[]’” Hamdan II ’s "statement” "a meaningless exercise.” Kavanaugh Op. 76. Despite his best efforts at revisionism, the fact of the matter is that Hamdan II was wrongly decided and today the majority so holds.
Concurrence Opinion
concurring in the judgment in part and dissenting.
Ali Hamza Ahmad Suliman al Bahlul, a self-avowed member of al Qaeda who has been held in the Naval Base at Guantanamo Bay, Cuba since 2002, was convicted and sentenced to life imprisonment by a military commission for three offenses under the Military Commissions Act of 2006. The question before the en banc court is whether these charges support the jurisdiction of the military commission. See Order, Apr. 23, 2013. Because Bahlul’s conduct occurred prior to the enactment of the 2006 Act, and the military commission lacked jurisdiction to try these non-law-of-war offenses, Bahlul’s convictions must be vacated. The court is vacating Bahlul’s convictions for material support and solicitation. For the following reasons, I would also vacate Bahlul’s conviction for inchoate conspiracy.
I.
In Hamdan v. Rumsfeld,
“Trial by military commission raises separation-of-powers concerns of the highest order.” Id. at 638,
The question presented by Bahlul’s appeal is the effect of the 2006 Act on these settled principles. Given “the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty,” Quirin,
A.
Congress enacted the Military Commissions Act of 2006, Pub.L. No. 109-366, 120 Stat. 2600, to authorize the establishment of law-of-war military commissions and to establish procedures governing their use. The 2006 Act specifies the “[c]rimes triable by military commissions,” 10 U.S.C. § 950v, including offenses such as attacking civilians, id. § 950v(b)(2), taking hostages, id. § 950v(b)(7), and torture, id. § 950(b)(ll). Congress included an unequivocal statement of the purpose and effect of its enactment:
(a) PURPOSE.—The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies*36 those crimes for trial by military commission.
(b) EFFECT.—Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.
Id. § 950p (emphases added). The court must “presume that [the] legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain,
The reference in Congress’s plain and unequivocal statement of purpose to “offenses that have traditionally been triable by military commissions,” 10 U.S.C. § 950p(a) (emphasis added), clearly indicates its intent to confine military commissions to their traditional role and jurisdiction, not to overturn settled principles. “Traditionally” is the adverbial form of the word “traditional,” which means “long-established” or “habitually done, used, or found.” The New Oxford American Dictionary 1785 (2d ed.2005). A “tradition[ ]” is readily identified and found in established practices; it is not based on a “few scattered ... anomalies.” NLRB v. Noel Canning, No. 12-1281, slip op. at 21 (U.S. June 26, 2014). To quote Henry James: “[I]t takes an endless amount of history to make even a little tradition.” The AMERICAN Soene 164 (1907). Thus sang Tevye in “Fiddler on the Roof’ of “Tradition” that has lasted for generations. Jerry Bock & Sheldon Harnick, Prologue—Tradition, on Fiddler on the Roof (RCA Victor 1964).
Congress’s unusual “effect” statement, that the 2006 Act’s provisions are “declarative of existing law,” 10 U.S.C. § 950p(b), amplifies its instruction in the statement of purpose to look to offenses traditionally triable by military commissions. Here, Congress expresses sensitivity to the implicit constitutional concerns arising from authorizing military commissions to try persons for conduct predating the 2006 Act. Its statement that the 2006 Act permits retroactive application only for offenses previously triable by military commission accords with the established “presumption against statutory retroactivity,” and is the very antithesis of a contrary “unambiguous directive” or “express command” requiring retroactivity. Landgraf v. USI Film Products,
Ambiguity, if any, would arise, therefore, only in identifying the offenses that “have traditionally been triable by military commissions,” 10 U.S.C. § 950p(a), and the Supreme Court has provided clear guidance on the resolution of this question. Congress’s statement that the offenses it has listed are “declarative of existing law,” id. § 950p(b), is a legal conclusion that is subject to a judicial declaration of what the law is. See Marburg v. Madison,
At the time of Bahlul’s charged conduct, the relevant statute was Article 21 of the Uniform Code of Military Justice, 10 U.S.C. § 821 (2000). See Hamdan,
For more than seventy years, the Supreme Court has interpreted the “law of war” to mean the international law of war. In Quirin, examining the predecessor statute to 10 U.S.C. § 821—Article 15 of the Articles of War, which similarly referenced “offenders or offenses that by statute or by the law of war may be triable by such military commissions”—the Court stated that in Article 15 Congress had “sanction[ed], within constitutional limitations, the jurisdiction of military commissions to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.”
B.
To demonstrate that the offenses of which Bahlul was convicted are violations of the international law of war and within the jurisdiction of his military commission, Supreme Court precedent indicates that the “Government must make a substantial showing that the crime for which it seeks
The government has repeatedly conceded that the three offenses of which Bahlul was convicted are not, and were not at the time of Bahlul’s conduct, law-of-war offenses under international law. See Resp’t’s Br. 34 (regarding conspiracy only); Resp’t’s Pet. for Reh’g En Banc 1-2 (“the charges are not sustainable under Hamdan II because they have not attained recognition at this time as offenses under customary international law”); Resp’t’s pr&-Hamdan II Panel Br. 57 (“the offenses of conspiracy, solicitation, and providing material support to terrorism have not attained international recognition at this time as offenses under customary international law”); Oral Argument Tr. 15 (Sept. 30, 2013) (“we have conceded that [all three offenses] are not violations of the international law of war”). This should end the matter given Congress’s stated purpose and effect in the 2006 Act, 10 U.S.C. § 950p. Instead, departing from the instruction of more than half a century of Supreme Court precedent, the government contends that the en banc court can affirm Bahlul’s convictions on the basis of a U.S. common (or U.S. domestic) law of war. Because the court is vacating Bah-lul’s convictions for material support for terrorism and solicitation but not for inchoate conspiracy, see Op. at 5, I need address only Bahlul’s jurisdictional challenges to his conviction for inchoate conspiracy. It bears noting, however, that the court’s analysis of the infirmities of the government’s U.S. common law theory, based on Civil War military commissions and field orders, in vacating two of Bah-lul’s convictions applies no less to his conviction for inchoate conspiracy. See Op. at 27, 29, 30.
1. The trial record of the law-of-war military commission makes clear Bahlul was charged and convicted of inchoate conspiracy; his stand-alone conspiracy conviction did not depend upon proof of the completion of any object offense (such as murder) or proof that the overt acts in furtherance of the conspiratorial agreement of which he was convicted (such as preparing a propaganda video) were law-of-war offenses.
First, the government elected not to charge Bahlul under the Pinkerton doctrine under which he could have been found vicariously hable for reasonably foreseeable substantive crimes committed by his co-conspirators in furtherance of the conspiracy. See Resp’t’s Br. 47; Pinkerton v. United States,
Second, the trial evidence allowed for conviction of no more than inchoate conspiracy. The government’s evidence consisted of Bahlul’s agreement with Usama bin Laden and other members of al Qaeda to commit law-of-war offenses and his commission of non-law-of-war, non-criminal overt acts in furtherance of the agreement. (The government’s focus at trial was on Bahlul’s role as an al Qaeda propagandist, in particular, his preparation of a recruitment video entitled “The Destruction of the American Destroyer U.S.S. Cole.”) None of the overt acts committed in furtherance of the charged conspiracy—including traveling to Afghanistan with the intent to join al Qaeda, undergoing military-type training at a training camp sponsored by al Qaeda, pledging fealty (or “ba-yat”) to Usama bin Laden, or transcribing the martyr wills of two of the September 11th hijackers—is a law-of-war offense. Even assuming being armed would have sufficed, the military commission found Bahlul not guilty of the overt act that he had “armed himself with an explosive belt, rifle, and grenades to protect and prevent the capture of Usama bin Laden.”
Third, the presiding military judge instructed the members of the military commission that to find Bahlul guilty of conspiracy, they must find beyond a reasonable doubt that he knowingly entered into an agreement to commit one or more substantive offenses triable by military commission and that he knowingly committed at least one overt act in furtherance of that agreement. Trial Tr. 845-46. The judge further instructed that proof the object of the conspiratorial agreement, the substantive law-of-war offense, “actually occurred is not required” and “[t]he overt act required for this offense does not have to be a criminal act.” Id. at 848-49. The presiding judge also confirmed that Bahlul was not being tried on the basis of a joint criminal enterprise; when he discovered that his written instructions included the word “enterprise,” the judge instructed the military commission members to strike the words “or enterprise,” explaining “that’s not before you,” id. at 881.
2. The international law of war does not recognize inchoate conspiracy as a law-of-war offense. Although there are two exceptions—conspiracy to commit genocide and conspiracy to wage aggressive war (also known as the commission of crimes against peace), see Hamdan,
Treaty law and international courts and tribunals have refused to recognize inchoate conspiracy as a war crime because of its potential for conflict with the international law-of-war principle “that criminal guilt is personal, and that mass punishments should be avoided.” Trial of Major War Criminals at Nuremberg at 500. Moreover, the Anglo-American concept of conspiracy is not known to some European legal systems. See Telford Taylor, The
The International Military Tribunal convened at Nuremberg “pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes,” Ham-dan,
Modern statutes dеfining international law-of-war offenses do not refer to conspiracy to commit such offenses (other than genocide). See Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90; Statute of the International Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192; Statute of the International Tribunal for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602; Statute of the Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 138. Additionally, international tribunals recognizing “joint
3. Given this historical background, the government has a heavy burden to show that Congress’s purpose in enacting the 2006 Act extended to inchoate conspiracy as an “offense[] that ha[s] traditionally been triable by military commissions,” 10 U.S.C. § 950p(a). The government begins by suggesting that “a systemized body of international law establishing individual criminal responsibility for specific acts during warfare” commenced with the Hague Conventions of 1899 and 1907 and “is a relatively modern innovation.” Resp’t’s Br. 28 (citing Timothy L.H. McCormack, From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime, in The Law OF WAR CRIMES: NATIONAL AND INTERNATIONAL ApproaChes 31, 43 (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997)). It continues by citing Colonel William Winthrop, referred to by the Supreme Court as the “Blackstone of Military Law,” Hamdan,
First, in discussing the Civil War military commissions relied upon by the government, Winthrop “excludes conspiracy of any kind from his own list of offenses against the law of war.” Hamdan,
Second, the Supreme Court’s reference to “the American common law of war” in Hamdan,
acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury.
The legislative history of the 2006 Act also does not advance the government’s position. The Report of the House Armed Services Committee on H.R. 6054 states “[f]or the reasons stated in Justice Thomas’s opinion [in Hamdan ], the Committee views conspiracy [to commit a war crime] as a separate offense punishable by military commissions.” H.R. REP. NO. 109-664, pt. 1, at 25 (2006). But Justice Thomas expressly acknowledged that “conspiracy” was understood as a law-of-war offense only when it went “beyond ‘intentions merely,’” and involved “unlawful” overt acts,
Even assuming, contrary to Supreme Court precedent, that a U.S. common law of war tradition could serve as an independent basis for sustaining convictions by law-of-war military commissions for offenses that are not recognized under the international law of war or by then-existing statute, the government fails to establish a domestic tradition to sustain Bahlul’s inchoate conspiracy conviction. It not only fails to point to evidence comparable to the abundance of evidence “both here and abroad” relied upon by the Supreme Court in Quinn,
1. The Civil War cases to which the government points are, in fact, consistent with Winthrop’s position. Further, as the Supreme Court cautioned, “[t]he Civil War precedents must ... be considered with caution” because military commissions “operated as both martial law or military government tribunals and law-of-war commissions” and thus “often charged hybrid crimes mixing elements of crimes ordinarily triable in civilian courts (like treason) and violations of the law of war.” Ham-dan,
Similarly, the case of Henry Wirz, also cited by the government, does not provide evidence of a tradition on which to base affirmance of Bahlul’s inchoate conspiracy conviction. Confederate Army Captain Wirz was charged with conspiring to injure the health and destroy the lives of soldiers in the military service of the United States and “alleged to have personally committed a number of atrocities against his victims, including torture, injection of prisoners with poison, and use of ‘ferocious and bloodthirsty dogs’ to ‘seize, tear, mangle, and maim the bodies and limbs’ of prisoners, many of whom died as a result.” Hamdan,
The 1865 trial of the Lincoln assassins, “even if properly classified as a trial by law-of-war commission,” Hamdan,
In sum, the Civil War conspiracy cases, including the trial of the Lincoln assassins, each, in fact, involved a completed law-of-war offense, not an inchoate conspiracy. These cases are consistent with Winthrop’s description of such conspiracies as among the “[c]rimes and statutory offenses ... which would properly be tried by [State or U.S.] courts if open and acting,” or alternatively, as hybrid crimes combining elements of crimes ordinarily triable in civilian courts and law-of-war offenses. Winthrop Preoedents at 839 & n. 5. They offer no reason to depart from Winthrop’s contemporary rejection of inchoate conspiracy as a law-of-war offense.
2. The World War II cases cited by the government also do not establish historical support for the jurisdiction of law-of-war military commissions over inchoate conspiracy. Although the Nazi saboteurs in Quirin were charged with conspiracy, the Supreme Court affirmed their convictions based on the independent charge that they had violated the law of war by crossing behind enemy lines having removed their uniforms, with the purpose of committing sabotage. See Quirin,
The government’s reliance on Colepaugh v. Looney,
3. In sum, “[f]ar from making the requisite substantial showing, the Government has failed even to offer a ‘merely colorable’ case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission,” Hamdan,
The crime of ‘conspiracy’ has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war. Winthrop explains that under the common law governing military commissions, it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt.
Id. at 603-04,
Insofar as the government proposes, contrary to Supreme Court precedent, a U.S. common law of war basis for sustaining Bahlul’s conspiracy conviction, the government’s proposal is also “unmoored from any enumerated power and has no rational stopping place.” Pet’r’s Br. 32. Such a theory suggests that modern military commissions could try defendants for any offense that approximates a charge previous
The government’s interpretation of Congress’s intent in enacting the 2006 Act, additionally, leaves no room for consideration of the reasons the international community has rejected inchoate crimes as law-of-war offenses: for example, their dragnet effect could sweep in and condemn as war criminals the line soldier who merely pledged allegiance to the enemy as well as the errant but innocent delivery boy or shepherd who was on the wrong street at the wrong time. See Taylor at 553; Br. of Amicus Curiae Int’l Law Scholars 7, 15-18. The Supreme Court has long understood the role of military commissions to arise from the military necessity in the midst of war “to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war,” Quirin,
And, even assuming arguendo that practices of U.S. military commissions could provide an independent basis upon which to support the jurisdiction of a law-of-war commission to try an offense not recognized in international law, nor codified in statute at the time, the government’s failure to demonstrate that such a “tradition! ]” existed at the time of the charged conduct requires vacatur of Bahlul’s inchoate conspiracy conviction.
Were the implications for the separation of powers raised by trial by military commission not “of the highest order,” Hamdan,
II.
There is still another reason why Bah-lul’s conviction for inchoate conspiracy (and the other two convictions) must be reversed if the 2006 Act is applied retroactively. See Op. at 11. Even assuming, contrary to its express statement of the intended “effect” of the 2006 Act, 10 U.S.C. § 950p(b), that Congress intended the 2006 Act to apply retroactively to create new offenses triable by military commissions, Bahlul’s convictions must be vacated under the Ex Post Facto Clause of the Constitution. U.S. Const, art. I, § 9, cl. 3.
A.
Bahlul’s Ex Post Facto Clause challenge to his convictions is properly reviewed de novo for any one of three reasons. In applying a plain error standard of review, the majority imposes a magic-words requirement nowhere to be found in the precedent of the Supreme Court or in the Uniform Code of Military Justice as interpreted by the Court of Appeals for the Armed Forces. See, e.g., United States v. Olano,
Bahlul unambiguously objected to his trial on the grounds he was being charged with offenses that did not exist at the time of his alleged conduct. Although he did not refer specifically to the Ex Post Facto Clause, his pretrial colloquy with the presiding military judge invoked its principles and alerted the military commission to the substance of his objection, which is all that is required to preserve an objection. See, e.g., United States v. Breedlove,
With these arguments, Bahlul expressly challenged the “new laws and this military commission” that was to try him as divorced from both international and American law principles and as constructed after-the-fact for the purpose of trying members of al Qaeda. Bahlul’s objections to “new laws” being applied to him and to “changing],” “adjusting],” and “add[ing] to” existing laws .are the considerations animating the ex post facto prohibition. The presiding military judge understood Bahlul’s arguments and his decision to “boycott” the military commission proceedings to be a motion to dismiss for lack of jurisdiction, because the law that created the proceedings was unlawful or the charges did not state an offense. Id. at 98-99.
Even if Bahlul had forfeited his ex post facto challenge, de novo review of a forfeited issue is permitted where the lower court has “nevertheless addressed the merits of the issue.” Blackmon-Malloy v. Capitol Police Bd.,
Furthermore, under the Rules of Military Commissions, Bahlul’s challenge to the military tribunal’s jurisdiction and the charges against him cannot be waived or forfeited and is reviewed de novo. Rule 905(e) provides, in relevant part, that failure to raise defenses or objections or to make motions or requests “except lack of jurisdiction or failure of a charge to allege an offense” at the appropriate time “shall constitute waiver.” See The Manual for Military COMMISSIONS, at 11-83-84 (2007). The rule thus defines “waiver” to include forfeiture. Similarly, Rule 907(b)(1), “Nonwaivable grounds,” states that “[a] charge or specification shall be dismissed at any stage of the proceedings if: (A) The military commission lacks jurisdiction to try the accusеd for the offense; or (B) The specification fails to state an offense.” Id. at 11-87. As the presiding military judge concluded, Bahlul’s retroactivity objection is a claim that the charges against him fail to state an offense. Cf Moore’s Federal PRACTICE § 612.04 (Lexis 2014) (“The defense of failure to charge an offense may be based on ... the unconstitutionality of the statute relied upon.”); see also United States v. Haddock,
The government concedes that the Ex Post Facto Clause applies in military commission prosecutions under the 2006 Act of detainees at Guantanamo Bay. See Resp’t’s Br. 64. This conclusion follows from Boumediene,
Ex post facto laws are “contrary to the great first principles of the social compact,” Calder, 3 Dali, at 388 (opinion of Chase, J.), and are “condemned by the universal sentence of civilized man” as “oppressive, unjust, and tyrannical,” Ogden v. Saunders,
Tellingly, when ratified and now, the Ex Post Facto Clause addresses the risk that, in response to political pressures, the legislature “may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.” Landgraf,
C.
Article I military commissions are an extraordinary tool designed to permit the military to infringe on the Article III power of the judiciary only to accomplish specific and discrete objectives. Through the use of military commissions, the government can provide a substitute for civilian courts in occupied territories and in places where martial law has been declared. See Hamdan,
This appears to be a test case brought by the government to establish the jurisdiction of law-of-war military commissions over inchoate conspiracy where the government has evidence the defendant entered into an agreement to engage in terrorist acts against the United States, but no evidence the defendant committed an overt act that was a law-of-war offense in furtherance of the agreement. This approach may assist the Executive Branch in surmounting obstacles to prosecutions in Article III courts caused by Congress’s recent restrictions on the use of appropriated funds to bring Guantanamo detainees into the United States. See, e.g., Statement by the President on H.R. 3304 (Dec. 26, 2013). But it puts at risk the separation of powers and the ex post facto principle by ignoring Congress’s plain statement of purpose and effect in the 2006 Act, the “traditional ]” jurisdiction of military commissions, and the international community’s rejection of inchoate offenses as law-of-war offenses.
Accordingly, the inchoate conspiracy charge of which Bahlul was convicted under the 2006 Act does not support the jurisdiction of the military commission and this conviction must be vacated as well as the two convictions vacated by the court. All three convictions must be vacated as violations of the Ex Post Facto Clause. It remains for the Administration to decide whether to bring other charges against Bahlul before a military commission or whether to charge him in an Article III court. To the extent that Congress has created an obstacle to bringing Bahlul to the United States, Congress can remove it. The question whether Congress has imper-missibly intruded upon the President’s Article II powers is not before the court. In
Concurrence Opinion
concurring in the judgment in part and dissenting in part:
Over five years ago, Ali Hamza Ahmad Suliman al Bahlul was convicted of conspiracy, solicitation, and providing material support for terrorism. Since that time, the government has been defending the conviction, first before the Court of Military Commission Review and now before this court. In this appeal, the government seeks clarification of the prosecutorial tools it can employ in the war on terror. While I concur in the court’s judgment affirming Bahlul’s conspiracy conviction and vacating the solicitation and material support convictions, I cannot agree with the way the court reaches that result. By reviewing Bahlul’s claims under a plain error standard, the court minimizes the value its opinion might provide to the government in future prosecutions. And by remanding residual issues to a panel, the court delays resolution of Bahlul’s case.
I would definitively answer the important questions raised by Bahlul’s appeal, reviewing his ex post facto arguments under a de novo standard. I would also affirm Congress’s power under the Define and Punish Clause to make certain offenses, including conspiracy, triable by military commission. This legal saga has endured long enough, and we should take this opportunity to resolve important legal questions that have arisen from the war on terror.
I
The opinion of the court provides insightful legal and historical background and, in certain areas, well-reasoned analysis. The separate opinions of Judges Henderson and Kavanaugh afford additional insight. There is much in those opinions with which I wholeheartedly agree. But although I concur in the court’s judgment, I would reach its conclusion through a slightly different path. In this section, I draw on the compelling analysis of my colleagues to explain briefly how I would dispose of Bahlul’s challenges. In the following sections, which contain the analytical bulk of my concurrence, I address three issues that I feel are not adequately covered by the other opinions: the applicability of ex post facto principles to Bahlul’s convictions, Bahlul’s challenge to Congress’s power under the Define and Punish Clause, and the court’s decision to remand remaining issues to a panel of this court.
I begin by noting the areas where I agree with my colleagues. First, for the reasons expressed by Judge Kavanaugh, I would review Bahlul’s Ex Post Facto Clause and retroactivity arguments under a de novo standard. See Opinion of Judge Kavanaugh (Kavanaugh Op.) 78-80; see also Opinion of Judge Rogers Part II.A. Bahlul asked the Military Judge presiding over his trial a “legal question” that, although not a model of clarity, was sufficient to preserve those arguments: “Does the law here start from before, during, or after?” Supp.App. 37. Furthermore, Rules 905 and 907 of the Rules of Military Commissions make jurisdictional challenges—including Bahlul’s—not subject to forfeiture.
Third, like the court, I would accept, for the purposes of this case only, the government’s concession that the Ex Post Facto Clause provides its protection to aliens detained at Guantanamo. See Op. 17-18. However, I doubt the correctness of the government’s concession. If our review of the question were de novo, I would, like Judge Henderson, apply the longstanding precedents of the Supreme Court and this court and conclude that the Ex Post Facto Clause does not apply to Bahlul or other aliens at Guantanamo. See Opinion of Judge Henderson.
Fourth, I would reject Bahlul’s Ex Post Facto Clause challenge as it concerns his conspiracy conviction. As Judge Kava-naugh explains, prior to 2006, the “law of war” provision of 10 U.S.C. § 821 (Article 21 of the Uniform Code of Military Justice) preserved the jurisdiction of military commissions to try offenses that (1) were codified in federal statutes and explicitly made triable by military commission, (2) were recognized by the international law of war, or (3) were, according to domestic tradition and practice, triable by military commission. See Kavanaugh Op. 65-68; of. Op. 22-24 (holding such a conclusion is not plainly erroneous). Furthermore, as the Lincoln conspirators’ cases, Quirin, Colepaugh, and the Korean War decisions demonstrate, domestic practice traditionally treated conspiracy as an offense triable by military commission. See Kavanaugh Op. 68-70; cf. Op. 24-26 (reaching similar conclusion under a plain error standard). Because conspiracy was an offense triable by military commission before the 2006 MCA, Bahlul’s prosecution for that offense did not violate the Ex Post Facto Clause.
Fifth, I fully agree with the court’s discussion of material support and solicitation and its conclusion that those offenses were not historically triable by military commission. See Op. Part IV.B-C. Thus, I join the court’s decision to vacate Bahlul’s convictions for those offenses.
II
As noted above, if not for the government’s concession, I would hold that, as an alien detained outside the sovereign territory of the United States, Bahlul is not entitled to the protections otherwise afforded by the Ex Post Facto Clause. However, despite my doubts about the extraterritorial applicability of the Clause, I do not doubt that its underlying principles apply to detainees at Guantanamo. The
During the proceedings of the International Military Tribunal, the defendants, who were charged with conspiring to wage aggressive war, complained that ex post facto punishment was abhorrent to the law of all civilized nations and that no sovereign power had made aggressive war a crime, no statute defined aggressive war, no penalty had been fixed for its commission, and no court had been created to try and punish offenders at the time the acts were committed. Nevertheless, the Tribunal recognized that its expression of the international law was “itself a contribution to international law” and, in setting up the Tribunal, several nations had done together what any nation had a right to do singly. Id. at 218. The Tribunal stated that “[t]o assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.” Id. at 219.
In the case of the- terrorist attacks of September 11, involving the murder of thousands of civilians, the attackers knew the civilized world would condemn their actions. Bahlul was fully aware of how the world would view his complicity in a moral evil, and “so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.” See id.
Ill
Bahlul argues Congress does not have the power under the Define and Punish Clause to make triable by military commission those offenses not proscribed by the international law of war. The court remands this issue to the panel. But the issue was fully briefed and argued before the en banc court and, for the reasons explained below, see infra Part IV, I think we should take the opportunity to resolve Bahlul’s challenge now.
Judge Kavanaugh would resolve this challenge by holding that Congress’s authority to establish military commissions derives not only from the Define and Punish Clause, but from Congress’s war powers more generally, including those originating in the Declare War and Necessary and Proper Clauses of Article I, Section 8. See Kavanaugh Op. Part II. Judge Kava-naugh notes that the war powers clauses do not refer to international law and are not defined or constrained by that law. While I agree with Judge Kavanaugh’s broad characterization of Congress’s war powers, I find his resolution of Bahlul’s claim incomplete. By looking to Congress’s authority under the war powers clauses, Judge Kavanaugh leaves unresolved the argument that Congress’s power under the Define and Punish Clause is strictly constrained by international law. I would resolve Bahlul’s challenge to Congress’s Define and Punish Clause powers on Define and Punish Clause grounds
Any discussion of the Define and Punish Clause must take proper account of two separate but related points. First, in drafting the Clause, the Framers were distinctly aware of the undefined and adaptable nature of international law. They also recognized the concomitant flexibility inherent in that law. And they understood that the United States could, and indeed should, make use of that flexibility to advance its own national security interests. That is, the Framers intended the United States—like other nations—to act in its own self-interest, albeit within the flexible constraints of international law. Second, the Framers deliberately placed the responsibility and prerogative to interpret and define international law with Congress—a political branch—rather than with the judiciary. This second point is related to the first and to some extent demonstrates its truth: If the Framers had intended the country to be strictly constrained by narrowly-interpreted international law, it would have made more sense to place the power to interpret that law with the judiciary—the legal branch expert in such tasks. But, instead, the Framers placed the power with Congress, intending that Congress would interpret and define international law in a more flexible way that serves the country’s self-interest, but still remains compatible with international norms. The Framers recognized the discretion that must necessarily be exercised in defining international law, and entrusted that discretion to Congress. The judiciary was given only very limited power to review Congress’s choices in defining and punishing violations of international law, and must exhibit tremendous deference to the legislature’s choices in this area.
With respect to the two principles described above, Congress’s decision to make conspiracy an offense triable by military commission provides an excellent example of the flexibility inherent in international law and ably demonstrates congressional prerogatives.
A
1
The history behind the Define and Punish Clause supports an expansive reading of Congress’s power under the Clause. Both the drafters of the Constitution and their eighteenth-century audience would have had more than a passing familiarity with Blackstone and Locke—and, perhaps, Vattel, Grotius, and other theorists— whose writings not only suggest the law of nations was the special domain of the executive and legislative branches, not the judiciary, but also tend to emphasize the protean quality of international law. See The FedeRalist No. 42, at 260 (James Madison) (Clinton Rossiter ed., 1961) (referring to the Define and Punish Clause as one of the “class of powers, lodged in the general government ... which regulate the intercourse with foreign nations”); BernaRD Bailyn, The Ideologioal Origins of the Amerioan Revolution 27-31 (1967); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 7, 60, 80 (1985).
The Framers were committed to a national government agile enough to avoid foreign entanglements and strong enough to deter aggression. In part, it was the country’s weakness in the face of decades
More importantly, the Framers clearly understood that parity among sovereign states is an aspect of power. Customary international law is often just another name for enlightened self-interest. The philosophical and cultural environment in which the Constitution developed was permeated by the premise of natural law at the core of the Constitution. The drafters saw nothing odd in the idea that nation-states could commit wrongs or that wronged states could punish bad behavior, provided they were strong enough to do so. America is not just the passive subject of the law of nations; it is a participant of and contributor to it. No one doubts the right of all nations “to resort to forcible means for the purpose of repressing any one particular nation who openly violates the laws of the society which Nature has established between them, or who directly attacks the welfare and safety of that society.” Emmerioh de Vattel, The Law of Nations, Preliminaries § 22, at 61 (photo, reprint 2005) (1854). Punishment contemplated a spectrum of coercive means up to and including war. Thus, Congress’s power to punish offenses against the law of nations comprehended a power to invoke a range of coercive means to preserve and maintain the law of nations. These sentiments are also part of the organic law of nations. See J. Andrew Kent, Congress’s Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 Tex. L.Rev. 843, 927 (2007) (“The collective enforcement of the law of nations envisioned by Vattel, Grotius, and others included the power to punish through warfare pirates, terrorists, and other sub-state violent groups.”); see also Vattel, The Law of Nations, supra, bk. Ill § 34, at 407 (“[P]rofessed assassins and incendiaries are guilty, not only towards the particular victims of their nefarious deeds, but also towards the state, which therefore proclaims them public enemies. Ml nations have a right to join in a confederacy for the purpose of punishing and even exterminating those savage nations.”).
Commentaries and treatises attempted to summarize how natural rights applied to relations between nations. In fact, the full title of Vattel’s work is The Law of Nations Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. Thus, such treatises acknowledged the undisputed right of each nation to preserve its national existence, to punish the violation of its laws, and to defend its polity and protect its property, and condemned unwarranted violence, conquest, and lawlessness. Vat-tel distinguishes the Positive law of nations (based on treaties, convention, and custom) from the Natural or Necessary law of nations. “As to the rights introduced by Treaties or by Custom, there is no room to apprehend that any one will confound them with the Natural law of nations.” Vattel, The Law of Nations, supra, Preliminaries § 27, at 63. To the extent these laws originated as precepts of reason derived from the law of nature, it makes sense that the law can change in response to the exigencies of new species of violence.
The few early cases interpreting the Define and Punish Clause acknowledged the flexibility inherent in international norms and deference to the exclusive congressional prerogatives the clause prescribes. In United States v. Smith,
In United States v. Arjona,
As Justice Story observed in Smith, the international law’s resistance to facile formulas led the Framers to entrust Congress with the “power to define” the laws of nations.
The Framers labored to separate law from politics because they knew that without that boundary, everything would be politics. They (wisely) perceived that law is (mostly) clear and categorical while politics—statecraft, diplomacy, warfare—is murky, a realm Justice Jackson evocatively dubbed the “zone of twilight.” Youngstown Sheet & Tube Co. v. Sawyer,
Thus, both the history and the placement of the clause demonstrate the power to define and punish was intended to give Congress flexibility in protecting national security, not to constrain the country’s ability to act by reference to international norms. They also suggest the power is a unique legislative power separate from traditional federal court jurisdiction.
2
More modern authorities demonstrate that international law has remained as flexible a concept today as it was in 1789. Like all common law, the law of war is part of an evolving process. As the International Military Tribunal at Nuremberg explained:
[Ijnternational law is not the product of an international legislature, and ... international agreements ... have to deal with general principles of law.... The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but a continual adaptation follows the needs of a changing world.
1IMT 221.
The international law of war is an evolving effort to protect civilians from the horrors of total war. Weaponry and modes of warfare change; human nature does not. Customary understandings about the international law of war are revised to account for the impact of bigger armies, more lethal weapons, and the speed and scope of belligerents’ response. Thus, the
What is perhaps an ironic example of the fluid development of the international law of war can be seen in Hamdan v. Rumsfeld (Hamdan I),
However, in Hamdan I, Justice Stevens broke apart these carefully crafted understandings. He concluded that Salim Ham-dan was entitled to the protections of Article 3 of the Geneva Conventions (Common Article 3) without determining either the nature of the conflict or the status of the combatant, and without deciding whether extending the Conventions’ protections to terrorists, anarchists, or brigands violated the expectation of the parties. Even Hamdan /’s fans lament its “incomplete and at times cursory analysis of critical issues involving the Geneva Conventions’ scope and the substantive protections the Conventions provide.” Michael W. Lewis, International Myopia: Hamdan’s Shortcut to ‘Victory”, 42 U. Rich. L.Rev. 687, 689 (2008). They note “a certain clumsiness of application and a dearth of analytical rigor.” Fionnuala Ni Aoláin, Hamdan and Common Article S: Did the Supreme Court Get It Right?, 91 Minn. L.Rev. 1523, 1524 (2007).
As Justice Stevens reconstructed Common Article 3, plucking bits and pieces out of other articles to suit his narrative, members of organizations that routinely target civilians and exploit perfidious circumstances were given the ability to argue for
In Hamdan I, the plurality seized upon the evolving nature of the international law of war to extend the protections of that law to nonconventional belligerents. But Bahlul argues this court should refuse to allow the government to leverage that evolving nature to deter those belligerents—an approach that would handcuff the United States to a one-way ratchet. Instead, we should recognize that the international law of war also adapts in a way that allows states to oppose nonconven-tional combatants and protect themselves from terrorists. Even more importantly, however, we must acknowledge that the development of international law is a task entrusted by the Framers to the legislative branch. The judiciary must give Congress extraordinary deference when it acts under its Define and Punish Clause powers.
B
Under the approach to the Define and Punish Clause outlined above, which gives proper regard to the dual principles of flexibility and deference, the conspiracy charge against Bahlul should stand. Even if the offense of conspiracy was not recognized under international law in 2001 by the same labels used by Congress in the 2006 Military Commissions Act, the substance is similar. Indeed, it is to be expected that international law, which was largely created by jurists trained in the civil law and which only more recently has begun to absorb common law ideas and institutions, differs formally from our own common law tradition. See Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 Vand. J. TráNsnat’l L. 1083, 1104-06 (2008). But that does not mean that when Congress decides to implement international law domestically it cannot adapt that law to fit within our common law institutions. Such adaptation is appropriate both because of the evolving nature of international law and the necessities of implementing international law in an established domestic legal system. International law recognizes analogues to conspiracy and other inchoate offenses.
In civil law countries, conspiracy is generally treated as a mode of liability requiring a completed crime. Peter Margulies, Defining, Punishing, and Membership in the Community of Nations: Material Support and Conspiracy Charges in Military Commissions, 36 FoRdham Int’l L.J. 1, 84 (2013). In the United States and
With the exceptions of aggressive war and genocide, international law does not recognize inchoate acts as stand-alone offenses, but as modes of liability. For instance, the Rome Statute recognizes that a person will be criminally responsible for a crime if that person “[i]n any ... way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.” Rome Statute of the International Criminal Court, art. 25, § 3(d) (2002); see also id. § 3(b) (a person shall be guilty of an offense if he “[o]rders, solicits or induces the commission of such a crime which in fact occurs or is attempted.”); id. § 3(c) (a person shall be guilty of an offense if he “aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.”). The difference between inchoate offenses under domestic criminal law and the modes of liability under international law is that international law requires that for someone to be convicted of conspiracy, solicitation, or material support, the substantive offense must have been completed or attempted. But in defining the crime of conspiracy as an inchoate offense, Congress exercised precisely the kind of discretion and flexibility the Define and Punish Clause envisions. Congress adapted recognized international law to fit the country’s particular needs and legal system.
It should be of no consequence that the form or name of the charges was different from what might be charged in the International Criminal Court or another international war tribunal. Whether the prosecutor demonstrates a conspiracy to obtain a conviction on a substantive offense, or establishes a conspiracy to commit a completed act as a stand-alone offense is a matter of form that springs from the differences between common law and civil law institutions. In matching military commission charges to international law offenses, we should adopt a functional approach, looking at the conduct involved rather than the label given to that conduct. It would be senseless to limit military commissions’ ability to try terrorists because the government has not adopted the forms and names used by international tribunals. Under a functional approach, Bahlul’s con
Furthermore, recent international war crimes tribunals have recognized as independent offenses conspiracy to commit genocide and conspiracy to wage aggressive war. See 1 IMT 224-26 (recognizing the crime of conspiracy to wage aggressive war but not recognizing conspiracy to commit war crimes and crimes against humanity because the latter was not defined as a separate crime in the Tribunal’s charter); Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 4 (2009) (making punishable “conspiracy to commit genocide” as well as incitement or attempt to commit genocide and complicity in genocide); Statute, International Criminal Tribunal for Rwanda, art. 2 (2010) (same); Convention on the Prevention and Punishment of the Crime of Genocide, art. 3 (1948) (same). These offenses are the progeny of particular conflicts, created to address new and previously unimaginable evils. Yet despite the innovative and post hoc nature of these particular conspiracy prosecutions, there was little if any protest that they violated ex post facto principles—the abhorrent nature of the offenses vitiated any such “justice” arguments. Similarly, it may be the time has come for international law to recognize the offense of conspiracy to commit acts of terrorism. Terrorism may be the global security challenge of the 21st Century, just like aggressive war was in the early 20th Century and genocide was in the half century following World War II. Perhaps the United States should be a leader in this area—a leader in international law commensurate with its status as a military leader in the war on terror— recognizing the offense of conspiracy to commit acts of terrorism. These are not questions for the judiciary, but rather for the legislature to answer. And Congress did so with the MCA, broadly construing international law to include the offense of conspiracy.
C
The Framers and subsequent courts recognized that to define the law of nations, Congress required a zone of deference. Without a measure of deference, legislative fear of second-guessing would hobble Congress’s power under the Define and Punish Clause, leaving the nation subject to the fate Madison depicted for most previous democratic experiments: “short in their lives ... [and] violent in their deaths.” The FedeRalist No. 10, supra, at 76 (James Madison). Contemporary international practice exhibits the same kind of practical deference to permit individual states to assess their own obligations. The principle of complementarity requires international tribunals to accord deference to state investigations and recognizes that what is mandated still leaves room for what is merely permissive.
Hamdan I’s plurality had no trouble extending Common Article 3 to members of organizations like al Qaeda. As noted, by stretching Common Article 3 to meet what it clearly perceived as a new exigency, the Court participated in the law’s evolution. Thus, courts seem permitted to interpret international conventions to allow the humanitarian aspect of the law to evolve virtually instantaneously. We cannot, on the other side of the equation, deny the political branches the ability to respond to novel threats no matter how destructive, and leave the nation at the mercy of an international consensus and subject to the whims of hostile factions who could prevent agreement or promote harmful agendas. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, June 8, 1977. This cannot be the logical import of arguing that the
Of course, deference does not mean there are no limits. We are always subject to the limits which restrain any regime premised on natural law and dedicated to the protection of natural rights. This is likely what the international community meant with the Martens Clause’s reference to the “principles of international law” resulting from “the laws of humanity[] and the requirements of the public conscience.” Hague II, pmbl., July 29, 1899. But a one-sided rigidity imposed on an inherently evolutionary international law does not do justice, it thwarts it.
Congress’s determination that conspiracy is an offense against the law of nations constitutes a reasonable interрretation of international law and is fully consistent with that law. Therefore, the judiciary is bound to uphold Congress’s exercise of authority under the Define and Punish Clause.
IV
Finally, I dissent with regard to the court’s remand of residual issues to a panel of this court. Bahlul’s appeal has been before this court nearly three years, and the court’s decision ensures it will remain here at least another term. Bahlul’s jury trial, equal protection, and freedom of speech challenges are clearly meritless. I would deny them all because Bahlul, as an alien located outside the territorial United States, is not entitled to the protections of the constitutional provisions he invokes, and, alternatively, because his claims lack merit for the reasons stated by Judge Kavanaugh. See Kavanaugh Op. Parts III, IV, and V. However, to the extent the court was not ready to decide these challenges, I would have asked the parties for supplemental briefing so we could do so.
More problematic, however, is that by reviewing Bahlul’s retroactivity arguments under the plain error standard, the court disposes of this case without providing the government clear guidance for prosecuting the remaining detainees at Guantanamo. Thus, it may be many years before the government receives a definitive answer on whether it can charge the September 11 perpetrators with conspiracy, or whether Congress has the power to make such an offense triable by military commission even prospectively. The ability to charge conspiracy is an important prosecutorial tool in the war on terror, where it can often be difficult for the government to procure evidence directly connecting leaders of militant groups with specific terror attacks.
The United States is engaged in a war on terrorism. As the various iterations of Hamdan and this case demonstrate, the Executive Branch needs concrete guidance as to how it can proceed with its prosecution of the September 11 conspirators and other detainees. Bahlul was first charged before a military commission ten years ago. Today, this court again leaves the government without any definitive answers. The court does not express respect to the coordinate branches of government by further delaying the executive’s prose-
For these reasons, I would affirm Bah-lul’s conspiracy conviction and vacate his material support for terrorism and solicitation convictions. I would remand to the Court of Military Commission Review for it to address the consequences of our decision for Bahlul’s life sentence.
. In upholding Bahlul’s conspiracy conviction, I would not rely on 18 U.S.C. § 2332(b). Indeed, by relying on Olano’s fourth prong, the court practically concedes that the existence of the conspiracy provision in Title 18 would not save Bahlul’s conviction if not for the court’s application of a plain error standard. See Op. 20-22. I am also reluctant to rely on that provision, however, because of the significant procedural differences between criminal prosecutions in Article III civilian courts and prosecutions before military commissions. The parties have not fully briefed the issue, and I would be reluctant without such briefing to hold that a law retroactively transferring jurisdiction to try an offense from an Article III court to a military commission does not violate the Ex Post Facto Clause. Because the court utilizes a plain error standard, the court also does not fully embrace this novel and potentially far-reaching result.
. Judge Kavanaugh’s reliance on the war powers clauses leaves unresolved questions such as whether the government may try before a military commission members of a terrorist organization with which the United States is not engaged in active hostilities.
. Even under the international law standard requiring a completed offense, Bahlul was properly convicted. The conspiracy charge alleges Bahlul conspired to commit various substantive offenses, including murder of protected persons, attacking civilians and civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, terrorism, and providing material support for terrorism. App. 120. The charge alleges Bahlul committed eleven overt acts in furtherance of that conspiracy. Among other overt acts, the military commission found Bahlul had prepared martyr wills "in preparation for the acts of terrorism perpetrated by ... Mohamed Atta, Ziad al Jarrah and others at various locations in the United States on September 11, 2001” and "researched the economic effect of the September 11, 2001 attacks on the United States.” App. 122-23. Thus, the military commission verdict incorporates the finding that Bahlul's co-conspirators completed international law offenses-namely, the terrorist attacks of September 11. See Findings Worksheet, App. 130, 133.
Concurrence Opinion
concurring in the judgment in part and dissenting in part:
Of the seven judges on the en banc Court for this case, five judges (all but Judge Henderson and Judge Brown) agree in light of Boumediene v. Bush that the Ex Post Facto Clause applies at Guantanamo. Indeed, the Government concedes as much. Given the Government’s concession, all seven judges on the en banc Court (including Judge Henderson and Judge Brown) therefore apply the Ex Post Facto Clause to analyze the offenses that were charged against Bahlul under the Military Commissions Act of 2006. In doing so, all seven judges reach the same bottom-line result that the Court reached in Hamdan II (here, by virtue of the Ex Post Facto Clause; there, by virtue of the 2006 Act as informed by the Ex Post Facto Clause): A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act.
As to conspiracy, six of the seven judges (all but Judge Rogers) uphold Bahlul’s conspiracy conviction against his ex post facto objection. Two of us (Judge Brown and I) would do so by employing de novo review and concluding that conspiracy, unlike material support for terrorism and solicitation, has long been an offense triable by military commission, including at the time of Bahlul’s conduct in 2001. The majority opinion likewise upholds Bahlul’s conspiracy conviction but does so by employing plain error review. The majority opinion believes that Bahlul forfeited his ex post facto objection by not raising the objection at trial.
I write separately to explain my analysis of these difficult questions, in particular my analysis of the conspiracy issue.
On September 11, 2001, Osama bin Laden learned the results of al Qaeda’s attack on the United States by listening to a radio. That radio was operated by bin Laden’s trusted aide, Ali Hamza Ahmad Suliman al Bahlul. A native of Yemen,
After his arrival in Afghanistan in the late 1990s, Bahlul became deeply embedded in al Qaeda’s operations. He pledged allegiance to bin Laden. He trained at an al Qaeda terrorist camp. He was appointed by bin Laden to lead al Qaeda’s media and propaganda operation. Bahlul produced a recruitment video glorifying al Qaeda’s October 2000 bombing of the U.S.S. Cole, an attack that killed 17 Americans. Bahlul personally arranged the loyalty oath and transcribed the “martyr will” of Mohamed Atta, Bahlul’s one-time roommate and the hijacker who flew American Airlines Flight 11 into the North Tower of the World Trade Center on September 11th. Bahlul performed the same services for Ziad Jarrah, another of Bahlul’s former roommates, who hijacked and piloted United Airlines Flight 93, the flight that apparently was headed to destroy the U.S. Capitol Building or the White House until it was downed in a Pennsylvania field by American passengers who fought back. Bahlul later said that he himself would have participated on September 11th as hijacker number 20, but bin Laden deemed his “media man” too essential to lose.
By the time of the attacks on September 11, 2001, bin Laden, Bahlul, and other senior al Qaeda leaders had already evacuated from al Qaeda’s headquarters in Kandahar and relocated to a remote mountainous region between Kabul and Khost. Soon thereafter, Bahlul fled from Afghanistan to Pakistan. In late 2001, while in Pakistan, he was captured. Since 2002, he has been detained by the U.S. Military at the U.S. Naval Base in Guantanamo pursuant to the 2001 Authorization for Use of Military Force. See Pub.L. No. 107-40, § 2(a), 115 Stat. 224, 224. The AUMF remains in effect and authorizes the Government to detain enemy combatants “for the duration of the relevant conflict”—in this instance, the ongoing global war that the United States аnd its allies are engaged in against al Qaeda and its associated forces. Hamdi v. Rumsfeld,
In addition to detaining Bahlul, the U.S. Government also exercised its well-established authority to try him before a military commission for war crimes. See 10 U.S.C. § 948d (2006); 10 U.S.C. § 821 (2000); Hamdan v. Rumsfeld,
Bahlul challenges his military commission convictions on five distinct constitutional grounds: (i) the Article I Ex Post Facto Clause, (ii) the Article I Define and Punish Clause, (iii) the jury trial protections of Article III and the Fifth and Sixth Amendments, (iv) the equal protection component of the Due Process Clause of the Fifth Amendment, and (v) the free speech protections of the First Amendment.
With respect to his material support for terrorism and solicitation convictions, Bah-lul’s Ex Post Facto Clause argument is correct because those offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. With respect to his conspiracy conviction, however, Bahlul’s Ex Post Facto Clause challenge lacks merit because conspiracy has long been proscribed under U.S. law as a war crime triable by military commission, including at the time of Bahlul’s conduct. Bahlul’s other arguments are all unavailing. Therefore, I would affirm Bahlul’s conspiracy conviction, vacate his material support for terrorism and solicitation convictions as ex post facto violations, and remand to the U.S. Court of Military Commission Review for it to address the consequences, if any, for Bahlul’s life sentence.
I
Bahlul’s primary argument to this Court rests on the Ex Post Facto Clause of Article I, Section 9 of the Constitution. See U.S. Const, art. I, § 9, el. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”). Among other things, the Ex Post Facto Clause bars retroactive prosecution of new offenses. See Peugh v. United States, — U.S. -,
In response, the Government concedes (correctly) that the Ex Post Facto Clause applies to military commissions at Guantanamo. Cf. Boumediene v. Bush,
The relevant military commission law in effect at the time of Bahlul’s conduct was 10 U.S.C. § 821. That statute was first enacted in 1916 and then re-enacted in 1950 as part of the Uniform Code of Military Justice. See Pub.L. No. 81-506, 64 Stat. 107, 115 (1950); Pub.L. No. 64-242, 39 Stat. 619, 653 (1916). As of 2001, at the time of Bahlul’s conduct, Section 821 provided as follows:
The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
10 U.S.C. § 821 (2000) (emphasis added).
As the Deputy Solicitor General aptly stated at oral argument, the question at the heart of this case is whether, as of 2001, conspiracy to commit war crimes was an offense proscribed under the “law of war” prong of Section 821. See Tr. of Oral Arg. at 15-20. The Supreme Court faced that exact same question in Hamdan v. Rumsfeld,
Importantly for our purposes as a lower court, all seven Justices who addressed the Section 821 “law of war” issue in Hamdan agreed that it turned on the content of the “common law of war” and required careful evaluation of historical U.S. military commission precedents involving conspiracy. Id. at 602,
The detailed historical inquiry undertaken by the seven Justices in Hamdan was not idle background discussion. On the contrary, the historical inquiry followed from the text of Section 821. Enacted in 1916 when Congress amended the Articles of War and set forth new rules for courts-martial, and then re-enacted in 1950 as part of the Uniform Code of Military Justice, Section 821 provided that the new rules governing courts-martial did not “deprive” military commissions of their preexisting authority. 10 U.S.C. § 821 (2000).
Bahlul nevertheless argues that the phrase “law of war” in Section 821 encompasses only international law offenses and not those offenses traditionally triable by U.S. military commissions. In other words, Bahlul says that Section 821, although expressly crafted not to “deprive” U.S. military commissions of their existing common-law authority over conspiracy and other offenses, did in fact deprive military commissions of that authority for offenses that were not also proscribed by the international law of war.
Bahlul’s argument that Section 821’s “law of war” prong consists exclusively of international law offenses is inconsistent with the text and textually stated purpose of Section 821, as well as with Supreme Court precedents such as Madsen and Ya-mashita interpreting Section 821. Perhaps most tellingly for present purposes, Bahlul’s interpretation of Section 821 conflicts with what the Supreme Court actually did in Hamdan. Seven Justices in Hamdan analyzed the “law of war” embodied in Section 821 as the international law of war supplemented by established U.S. military commission precedents. Indeed, that is the only interpretation of Section 821 that squares with how the seven Justices analyzed the question in Hamdan.
In short, at the time of Bahlul’s conduct, Section 821 authorized military commissions to try offenses drawn from three bodies of law: federal statutes defining offenses triable by military commission, the international law of war, and historical U.S. military commission tradition and practice as preserved by Congress when it enacted Section 821 in 1916 and 1950.
At the time of Bahlul’s conduct, neither any federal statute nor the international law of war proscribed conspiracy as a war crime triable by military commission. So the question we must decide is whether U.S. military commission precedents treated conspiracy as an offense triable by military commission. In other words, we must decide the question that was addressed by seven Justices in Hamdan but not decided by the Court. The answer, in my view, is yes: U.S. military commission precedents have treated conspiracy as an offense triable by military commission.
I base that conclusion in substantial part on the 1865 military commission conviction of the conspirators who plotted to assassinate President Lincoln. Put simply, the military commission trial of the Lincoln conspirators is the highest-proflle and most important U.S. military commission precedent in American history. President Andrew Johnson, after seeking the advice of the Attorney General, decided to
In considering the history of U.S. military commissions, particularly at the time of Section 821’s original enactment in 1916 and its re-enactment in 1950, the Lincoln conspirators case looms as an especially clear and significant precedent.
The Lincoln conspirators precedent does not stand alone. The second highest-profile and second most important U.S. military commission in American history was the military commission trial of the Nazi saboteurs who secretly crossed into the United States during World War II. Again, the defendants were expressly charged with and convicted of conspiracy, as well as of another law of war offense. The Attorney General of the United States personally prosecuted the case before the military commission. President Franklin Roosevelt, the Commander in Chief of the Army and Navy, reviewed and affirmed all of the convictions. Upon its review, the Supreme Court affirmed the saboteurs’ convictions based on the other law of war offense, making it unnecessary to address conspiracy. See Quirin,
To summarize so far: As of 1950 when Congress reenacted Section 821 as part of the Uniform Code of Military Justice and expressly preserved the traditional authority of U.S. military commissions, the two most well-known and important U.S. military commissions in American history tried and convicted the defendants of conspiracy.
And there were other significant precedents as well. For example, later in World War II, the Government prosecuted another set of Nazi saboteurs by military commission for conspiracy. In that case, Assistant Attorney General Tom Clark produced a formal memorandum concluding—based in large part on the precedents involving the Lincoln conspirators and the earlier Nazi saboteurs—that conspiracy was a law of war offense triable by military commission. Sec Memorandum from Tom C. Clark, Assistant Attorney General, to Myron C. Kramer, Judge Advocate General (Mar. 12, 1945), reprinted in U.S. SuppApp. 133-139. The military commission subsequently convicted the defendants of conspiracy. President Truman reviewed and affirmed the convictions. And after one of those Nazi saboteurs later challenged his conviction in court, the Tenth Circuit upheld the conviction, including the conspiracy conviction, in an opinion by Judge Murrah. See Colepaugh v. Looney,
To be sure, against those landmark American precedents, some international tribunals and conventions subsequent to the original enactment of Section 821 have chosen not to make conspiracy a war crime triable by military commission. Most notably, the International Military Tribunal at Nuremberg did not identify conspiracy
In any event, what matters for present purposes is that at the time of Bahlul’s conduct, no authoritative source of U.S. law had ever negated the validity or authority of the U.S. military commission convictions of the Lincoln assassins for conspiracy or of the Nazi saboteurs for conspiracy. In 1916, when it enacted Section 821, as well as in 1950 when it reenacted the statute, Congress was aware of those significant precedents. See id. at 592 & n. 22,
By stating that Section 821 did not “deprive” military commissions of their traditional authority, Congress necessarily incоrporated the Lincoln assassins precedent for conspiracy when it enacted the original version of Section 821 in 1916, and it incorporated the Lincoln assassins and Nazi saboteur precedents for conspiracy when it re-enacted the statute in 1950 as part of the Uniform Code of Military Justice. After all, it would be rather bizarre to conclude that Congress, by enacting a statute that said it did not “deprive” military commissions of their traditional authority, in fact silently overruled the two most significant and well-known military commission precedents in American history. Since 1950, moreover, Congress has never backed away from its express preservation of traditional U.S. military commission authority over conspiracy. Indeed, in the 2006 Act, Congress reiterated its longstanding intent and belief that conspiracy has “traditionally been triable by military commissions.” 10 U.S.C. § 950p(a) (2006).
At the time of Bahlul’s conduct, the other two Branches likewise had never undermined the validity of the Lincoln conspirators and Nazi saboteur precedents. No U.S. court had ever cast any doubt on those landmark military commission convictions, or on trying conspiracy by military commission. And in the Executive Branch, there is a straight line from now to then: In deciding that conspiracy is an offense that may be tried by military commission, President Barack Obama is the same as President George W. Bush is the same as President Harry Truman is the same as President Franklin Roosevelt is the same as President Andrew Johnson is the same as President Abraham Lincoln.
In sum, conspiracy was triable by military commission under the law of war prong of Section 821 at the time of Bah-lul’s conduct in 2001. The Ex Post Facto Clause therefore does not bar the Government’s prosecution of Bahlul under the 2006 Act for conspiracy. And for that same reason, to the extent that Bahlul argues that the 2006 Act itself incorporates ex post facto principles and bars retroactive prosecution of new offenses, the 2006 Act likewise does not bar the Government’s prosecution of Bahlul for conspiracy.
By contrast, as the Government all but concedes, there is no historical U.S. military commission precedent for trying the offenses of material support for terrorism and solicitation before U.S. military commissions. And those two offenses are not international law of war offenses, nor were they triable by military commission under any other federal statute at the time of Bahlul’s conduct. The Government’s actions between the attacks of September 11, 2001, and the enactment of the 2006 Act underscore that material support for terrorism and solicitation have not been thought to be Section 821 “law of war” offenses. During that time, the United States charged 10 al Qaeda defendants before military commissions. The United States did not charge any of them with material support for terrorism or solicitation, presumably because it was widely understood that those two offenses were not covered under Section 821. By contrast, the United States charged all 10 al Qaeda defendants with conspiracy, presumably because the Government believed, based on the historical precedents, that conspiracy was covered under Section 821.
In short, unlike conspiracy, material support for terrorism and solicitation were
II
In challenging his convictions, Bahlul also advances a far more sweeping constitutional argument. He contends that Congress lacks constitutional authority to make conspiracy, material support for terrorism, or solicitation war crimes triable by military commissions, even prospectively, because those offenses are not proscribed under the international law of war. Bahlul’s argument, in essence, is that the U.S. Constitution (as relevant here) incorporates international law and thereby interposes international law as a constitutional constraint on what crimes Congress may make triable by military commission. On its face, that is an extraordinary argument that would, as a matter of U.S. constitutional law, subordinate the U.S. Congress and the U.S. President to the dictates of the international community—a community that at any given time could be unsupportive of or even hostile to U.S. national security interests as defined by Congress and the President. And because conspiracy is not and has not been an offense under the international law of war, the argument would render the Lincoln conspirators and Nazi saboteur convictions for conspiracy illegitimate and unconstitutional. I would reject the argument.
Bahlul spins out the argument in two different ways. First, he contends that Congress’s authority to create offenses triable by military commission stems exclusively from the Article I Define and Punish Clause, which allegedly confines military commissions to trying only international law of war offenses. I will consider that argument in this Part II of the opinion. Second, Bahlul contends that the jury trial protections of Article III and the Fifth and Sixth Amendments generally require jury trials, and that the exception to those jury trial protections for military commissions applies only to international law of war offenses. I will consider that argument in Part III below.
Bahlul says that Congress may enact offenses triable by U.S. military commissions only under Congress’s Article I, Section 8 power to “define and punish ... Offences against the Law of Nations.” U.S. Const, art. I, § 8, cl. 10. Because conspiracy is not an offense under international law, Bahlul argues that Congress lacked power under Article I, Section 8 to make the offense triable by military commission.
The premise of this argument is incorrect. As the Supreme Court has repeatedly stated, Congress’s authority to establish military commissions to try war crimes does not arise exclusively from the Define and Punish Clause. On the contrary, as the Supreme Court has explained, Congress also has authority to establish military commissions to try war crimes under the Declare War and Necessary and Proper Clauses of Article I, Section 8. See U.S.
That interpretation also follows from historical practice. In accordance with the constitutional text, Congress since the earliest days of the Republic has gone beyond international law in proscribing war crimes triable by military commission. See 10 U.S.C. §§ 950t(26), 950t(27) (2012) (aiding the enemy and spying); 10 U.S.C. §§ 904, 906 (2000) (same); Articles of War of 1806, 2 Stat. 359, 366, 371 (1806) (same). That historical practice strongly supports the conclusion that international law is not a constitutional constraint when Congress proscribes war crimes triable by military commission. Cf. NLRB v. Noel Canning, No. 12-1281 (U.S. June 26, 2014) (relying on longstanding historical practice to interpret Constitution).
And perhaps most important for us as a lower court is the Supreme Court’s decision in Quirin. There, the Court rejected various constitutional challenges to military commissions. In so doing, the Court emphasized among other things that U.S. military commissions have long possessed statutory authority to try the offense of spying, which was not and has never been an offense under the international law of war. See Quirin,
In short, the constitutional text, longstanding statutes, and Supreme Court precedent all demonstrate that Article I does not limit Congress to international iaw of war offenses when it proscribes war crimes triable by military commission.
Ill
Citing the jury trial protections of Article III and the Fifth and Sixth Amendments, Bahlul reprises the same basic argument that U.S. military commissions may try only international law of war offenses. This version of Bahlul’s argument begins with the premise that the Constitution requires all crimes to be tried by jury. Bahlul recognizes, as he must, that the Supreme Court in Quirin nonetheless permitted trial by military commission for war crimes. See Ex parte Quirin,
To begin with, there is no textual support for Bahlul’s theory. There is no textual reason to think that the exception to the jury trial protections for military commissions is somehow confined to international law of war offenses. That exception, as the Supreme Court has explained, stems from the various war powers clauses in Article I and Article II. And those war powers clauses are not defined or constrained by international law. See Ham-dan,
Moreover, Bahlul’s novel theory contravenes precedent: It is inconsistent with the Lincoln conspirators and Nazi saboteurs conspiracy convictions, and it cannot be squared with Quirin.
In Quirin, the defendants argued that they had a constitutional right to trial by jury and thus could not be tried by military commission. At some length, the Court in Quirin specifically rejected the defendants’ Article III and Fifth and Sixth Amendment jury trial objections to trial by military commission. See Quirin,
For present purposes, two things are notable about Quirin. First, in reaching its conclusion on the jury trial issue, the Court relied on the fact that Congress had made spying an offense triable by military commission since the earliest days of the Republic. The Court said that the early Congress’s enactment of the spying statute “must be regarded as a contemporary construction” of both Article III and the Fifth and Sixth Amendments “as not foreclosing trial by military tribunals, without a jury, of offenses against the law of war committed by enemies not in or associated with our Armed Forces.” Id. at 41,
In short, neither Article I nor the jury trial protections of Article III and the Fifth and Sixth Amendments limit Congress to the international law of war when Congress proscribes war crimes triable by military commission. Put another way, the United States may be a leader in the international community, not just a follow
IV
Bahlul also raises an equal protection challenge under the Due Process Clause of the Fifth Amendment. Bahlul argues that the Military Commissions Act of 2006 violated equal protection principles because it was underinclusive in authorizing military commission trials of alien enemy combatants but not of U.S. citizen enemy combatants. See 10 U.S.C. §§ 948b(a), 948c, 948d(a) (2006); Bolling v. Sharpe,
The Government correctly points out that many federal laws draw distinctions between U.S. citizens and aliens, and that the Supreme Court has upheld many such laws. See, e.g., Demore v. Kim,
V
Bahlul also raises a First Amendment argument, claiming that he was unconstitu
As an initial matter, Bahlul was convicted of conspiracy based on his conduct. The military commission found that Bah-lul, among other acts, “traveled to Afghanistan with the purpose and intent of joining al Qaeda,” “underwent military-type training at an al Qaeda sponsored training camp,” “acted as personal secretary and media secretary of Usama bin Laden in support of al Qaeda,” arranged for two September 11th hijackers to pledge loyalty oaths to bin Laden, and “operated and maintained data processing equipment” “for the benefit of Usama bin Laden.” App. 122-23.
Moreover, although non-U.S. citizens arguably may have some First Amendment rights at Guantanamo or in other U.S. territories for any speech they engage in there, non-U.S. citizens have no First Amendment rights abroad in foreign countries. The Supreme Court has applied the Constitution to aliens in the United States and in U.S. territories, but has not extended constitutional rights to aliens in foreign countries. See Boumediene v. Bush,
In addition, even if the First Amendment did apply to Bahlul’s speech in Afghanistan, the Supreme Court has made clear that the First Amendment does not protect speech such as Bahlul’s that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Virginia v. Black,
VI
A few words in response to the majority opinion: I find the majority opinion sur
First, I am surprised by what the majority opinion decides. After all, the majority opinion reaches the same bottom-line conclusion that this Court reached in Hamdan II: The offense of material support for terrorism may not be tried by military commission for conduct that occurred before the 2006 Act. But the majority opinion does so based on the Ex Post Facto Clause alone and “overrules” Hamdan II’s statement that the 2006 Act itself incorporates ex post facto principles. That seems to be a meaningless exercise by the majority opinion. Applying the canon of constitutional avoidance, Hamdan II reasoned that the 2006 Act could not be applied to new offenses that were not previously triable by military commission. Hamdan II was based on its understanding of the limits of the Ex Post Facto Clause. Ham-dan II indicated that the 2006 Act allowed prosecutions of the listed offenses for pre-2006 conduct to the extent that the Ex Post Facto Clause allowed such prosecutions. As the Court said, “Congress incorporated ex post facto principles into the terms of’ the Act. Hamdan II,
On that question, my view is that the Ex Post Facto Clause bars retroactive prosecution at Guantanamo of new offenses that were not previously triable by military commission. But the majority opinion suggests (although it does not definitively conclude) that the Ex Post Facto Clause is less of a constraint on the Government and may allow military сommissions at Guantanamo to retroactively prosecute offenses that were previously triable as federal crimes in Article III federal courts, even if those offenses were not previously triable by military commission.
I am surprised by this rather aggressive suggestion about the meaning of the Ex Post Facto Clause. After all, that position was not forcefully advocated by the Government in its submission to the en banc Court, as the argument appeared only in a short discussion late in its brief. In the hour-long oral argument, moreover, the Government did not advance that argument, and no Judge asked any question along those lines or suggested this as a possible approach.
Moreover, like Judge Brown (as well as Judge Rogers), I too respectfully have serious doubts about the majority opinion’s suggestion that the Ex Post Facto Clause may allow military commissions to retroactively prosecute crimes that were previously triable as federal crimes in federal court even when they were not previously triable by military commission. Can Congress, consistent with the Ex Post Facto Clause, really just pull out the federal
It is especially surprising for the majority opinion to take its doubly aggressive approach—overruling one aspect of a precedent of this Court and advancing a heretofore unheard-of view of the Ex Post Facto Clause’s application to military commissions—when it is unnecessary to do so here. After all, in what it terms an “independent and alternative” holding, the majority opinion says that plain error review applies and concludes that the conspiracy conviction was not plain error because conspiracy at least arguably was triable by military commission under Section 821 at the time of Bahlul’s conduct. The majority opinion notes, correctly, that it is impossible to describe the Government’s position on conspiracy and Section 821 as plain error when the issue remains open in the Supreme Court and three Justices in Harridan agreed with the Government’s position. The majority opinion could have said no more than what it says about Section 821 to resolve the conspiracy ex post facto issue for purposes of Bahlul’s appeal.
Second, from the other direction, I am also surprised by what the majority opinion does not decide. We took this case en banc specifically to decide whether, consistent with the Ex Post Facto Clause, a military commission could try conspiracy for conduct that occurred before the 2006 Act. Yet the majority opinion does not actually decide that question.
That is because the majority opinion applies the plain error standard of review. The majority opinion thus does not decide whether there was error in the conspiracy conviction; instead, it decides only whether any alleged error was plain.
Like Judge Brown (as well as Judge Rogers), I too disagree with the majority opinion’s use of a plain error standard of review. To begin with, Bahlul did not forfeit his ex post facto objection, so he is legally entitled to de novo review of that issue and does not have to meet the high bar of showing plain error. Bahlul raised an ex post facto issue when he pled not guilty and, among other things, posed to the Military Judge a “legal question”: “Does the law here start from before, during, or after?” SuppApp. 37; see id. (Bahlul asking whether “the law here” “stems from the action, before action, or post action?”).
But put that aside. Even if Bahlul did not expressly raise an ex post facto objection at trial, the issue is not forfeitable under Rules 905 and 907 of the Rules of Military Commissions. Those Rules contain two exceptions to the usual forfeiture rules for objections based on a “lack of jurisdiction” or “failure of a charge to allege an offense.” Manual for Military Commissions pt. II, at 11-83-84 (2007);
And in any event, the question raised by Bahlul in this Court is surely whether the conspiracy charge fails to “allege an offense,” which is the other kind of non-forfeitable objection under Rules 905 and 907.
Finally, even if the issue had been forfeited and plain error review applied, the majority opinion still would possess discretion to decide the ex post facto issue under the first prong of the plain error test as defined by the Supreme Court and conclude that there was no “error” in the conspiracy conviction. See United States v. Olano, 507 U.S. 725, 732,
On top of not deciding how the ex post facto principle applies to conspiracy trials before military commissions, the majority opinion also does not decide Bahlul’s Article I, jury trial, equal protection, or First Amendment challenges, but rather sends those four issues back to a three-judge panel for resolution. I also respectfully disagree with that approach. The remaining issues are not that complicated; we have the requisite briefing; and we could request supplemental briefing if need be. Moreover, those issues are especially easy to decide on plain error review, which after all is the standard of review that the majority opinion indicates must be applied to those issues. Sending the case back to a three-judge panel will delay final resolution of this case, likely until some point in 2015, given the time it will take for a decision by the three-judge panel and then resolution of any future petitions for рanel rehearing or rehearing en banc. Like Judge Brown, I believe that we should resolve the case now, not send it back to the three-judge panel.
In short, I respectfully disagree with the majority opinion’s addressing the ex post facto issue in a way that does not actually decide the legal issue with respect to conspiracy and provides little clarity or guidance on that issue going forward, and also with its sending the other four issues back
In sum, I would affirm Bahlul’s conspiracy conviction, vacate the material support for terrorism and solicitation convictions as ex post facto violations, and remand to the U.S. Court of Military Commission Review for it to address the consequences, if any, for Bahlul’s life sentence.
. So that there is no confusion as an historical matter and to be clear about the legal implications of the majority opinion, it is important to emphasize that the majority opinion’s analysis and vacatur of Bahlul's material support for terrorism conviction necessarily mean that Salim Hamdan’s material support for terrorism conviction likewise had to be vacated, which is what the Hamdan II panel did. In other words, the majority opinion relies on a slightly different rationale than did Hamdan II (the Ex Post Facto Clause itself rather than the 2006 Act as informed by the Ex Post Facto Clause), but the majority opinion reaches the same result: The offense of material support for terrorism may not be tried by military commission for conduct that occurred before the 2006 Act.
. The ongoing global war against al Qaeda and its associated forces is overlapping but distinct, in law and in fact, from the war in Afghanistan against the former Taliban regime and Taliban forces. The potential end of the U.S. combat mission against Taliban forces in Afghanistan obviously does not mean the end of the global war against al Qaeda and its associated forces.
. As a general matter, the U.S. Constitution applies to U.S. citizens worldwide and to non-U.S. citizens within the 50 states and the District of Columbia, but not to non-U.S. citizens in foreign countries. See Zadvydas v. Davis,
A more nuanced issue is the reach of the Constitution to non-U.S. citizens in an in-between category: in territories owned or controlled by the United States, such as Puer-to Rico and Guam. Determining whether the Constitution applies to non-U.S. citizens in U.S. territories requires a "functional” rather than "formalistic” analysis of the particular constitutional provision and the particular territory at issue. Boumediene v. Bush, 553
In Boumediene, the Court determined that Guantanamo was de facto U.S. territory— akin to Puerto Rico, for example—and not foreign territory. See
. The precise text of Section 821 and its predecessor statutes has varied slightly over time, but the anti-deprivation language has been present in every iteration. See Pub.L. No. 64-242, 39 Stat. 619, 653 (1916) ("shall not be construed as depriving military commissions”); Pub.L. No. 66-242; 41 Stat. 759, 790 (1920) ("shall not be construed as depriving military commissions”); Pub.L. No. 81-506, 64 Stat. 107, 115 (1950) ("shall not be construed as depriving military commissions”); Pub.L. No. 84-1028, 70A Stat. 1, 44 (1956) ("do not deprive military commissions”).
. A passage in this Court's decision in Ham-dan II—a passage beginning "Third,” in the third-to-last paragraph of the opinion—suggested that the phrase "law of war” in Section 821 encompassed offenses under the international law of war but did not cover other offenses that were rooted only in U.S. military commission precedents. See Hamdan v. United States,
. It would be unconstitutional to apply any new offenses in the 2006 Act to pre-2006 conduсt. In light of the canon of constitutional avoidance and Congress’s express statement in the text of the 2006 Act that the law did "not establish new crimes,” but rather merely codified "offenses that have traditionally been triable by military commissions,” I read the 2006 Act consistently with the Ex Post Facto Clause to authorize retroactive prosecution only of offenses that were already prohibited as war crimes triable by military commission under U.S. law at the time of the defendant's conduct. 10 U.S.C. § 950p(a) (2006); see Hamdan v. United States,
. For purposes of Bahlul’s jury trial, equal protection, and First Amendment arguments, I will assume for the sake of argument that those constitutional protections apply to non-U.S.-citizens at Guantanamo. See supra note 3; Kiyemba v. Obama,
. Judge Henderson’s concurrence, which speaks only for her, notes quite correctly that the majority opinion today overrules Hamdan II's reliance on the 2006 Act (as opposed to the Ex Post Facto Clause) as a basis for concluding that material support for terrorism may not be tried by military commission for conduct that occurred before the 2006 Act. What Judge Henderson does not say in her concurrence is this indisputable fact: Based on the Ex Post Facto Clause, the majority opinion today reaches the same result as Hamdan II by concluding that material support for terrorism may not be tried by military commission for conduct that occurred before the 2006 Act, which in turn means that Salim Hamdan’s material support for terrorism conviction was properly overturned by this Court in Hamdan II.
. Rules 905 and 907 are entitled "waiver” but those Rules, like the other Rules of Military Commissions, use that term (imprecisely) to cover both waived arguments and forfeited arguments. See Manual for Military Commissions pt. II, at 11-83-84, 11-87 (2007); Manual for Military Commissions pt. II, at 11—89— 91, 11-95 (2012); see also Rules 920(f), 1005(f), 1106(e)(6), Manual For Military Commissions pt. II, at 11-115, 11-125, 11-145 (2007).
. Notably, the Advisory Committee on the Federal Rules of Criminal Procedure has recently recommended changing this aspect of Rule 12(b)(3)(B), apparently because it is somewhat too lenient. Under the proposed change, the argument that a charge failed to state an offense would no longer be an exception to the usual rules governing waiver and forfeiture. In other words, a defendant would no longer be able to raise an argument that the charge failed to state an offense for the first time on appeal and still receive de novo review of that claim. See Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, Rules Appendix C-15-C-26 (Sept.2013). But that proposed rule change, which has not yet taken effect, just highlights what the "fails to state an offense” language means now in the Criminal Rules. And that is the same language that the Rules of Military Commissions uses. Unless and until the Rules of Military Commissions are likewise changed, therefore, an argument that a military commission charge failed to state an offense—such as the Ex Post Facto Clause argument here—may be raised for the first time on appeal and receive de novo review.
. The Supreme Court in Quinn affirmed the Nazi saboteurs’ convictions and sentences on one charge and declined to review their convictions on the remaining charges. See Ex parte Quirin,