Ali Hamza Ahmad Suliman AL BAHLUL, Petitioner v. UNITED STATES of America, Respondent.
No. 11-1324.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 22, 2014. Decided June 12, 2015.
1
Jeffrey T. Renz was on the brief for amici curiae First Amendment Scholars and Historians and The Montana Pardon Project in support of petitioner.
Agnieszka M. Fryszman was on the brief for National Institute of Military Justice as amicus curiae in support of petitioner.
McKenzie A. Livingston was on the brief for amici curiae Robert D. Steele and other former members of the Intelligence Community in support of petitioner.
Robert Barton and Thomas J. McIntosh were on the brief for amicus curiae Professor David W. Glazier in support of petitioner.
Jonathan Hafetz was on the brief for amici curiae Asian American Legal Defense and Education Fund, et al., in support of petitioner.
John F. De Pue, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Steven M. Dunne, Chief, Appellate Unit,
James A. Schoettler Jr. was on the brief for amici curiae Former Government Officials, et al., in support of respondent.
Before: HENDERSON, ROGERS, and TATEL, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Circuit Judge TATEL.
Dissenting opinion by Circuit Judge HENDERSON.
ROGERS, Circuit Judge:
Pursuant to the Military Commissions Act of 2006,
Because Bahlul‘s challenges include a structural objection under Article III that cannot be forfeited, see Commodity Futures Trading Comm‘n v. Schor, 478 U.S. 833, 850-51, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), we review that challenge de novo, and we conclude, for the following reasons, that his conviction for inchoate conspiracy must be vacated.
I.
Bahlul contends that the jurisdiction of law of war military commissions is, under the Constitution, limited to offenses under the international law of war, and thus that Congress has encroached upon the Article III judicial power by authorizing Executive Branch tribunals to try the purely domestic crime of inchoate conspiracy. As a threshold matter, the government maintains that Bahlul has forfeited the Article III challenge, having failed to raise the argument at his trial before the military commission. Bahlul‘s challenge, however, presents a structural violation of Article III and is not waivable or forfeitable.
The Supreme Court held in Schor that an Article III structural claim of encroachment on the judicial power was not subject to waiver. Id. at 850-51. The Court explained that “Article III, § 1, not only preserves to litigants their interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as an inseparable element of the constitutional system of checks and balances.” Id. at 850 (internal quotation marks omitted). Further, the Court explained, it “safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts to transfer jurisdiction to non-Article III tribunals for the purpose of emasculating constitutional courts, and thereby prevent[s] ‘the encroachment or aggrandizement of one branch at the expense of the other.‘” Id. at 850 (quoting Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)) (alterations and some internal quotation marks omitted). The Court held:
To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III, § 2. When these Article III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.
Id. at 850-51 (internal citation omitted). As a result, even though Schor had consented to adjudication of his state-law claim by an Article I tribunal, see id. at 849-50, the Supreme Court analyzed his structural challenge de novo, see id. at 851-57.
The Court reaffirmed Schor‘s analysis in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), explaining that it was consistent with a rule that although res judicata claims were waivable, courts had discretion to excuse the waiver. See id. at 231-32. Accordingly, this court, as well as every other circuit court to address the issue, has held that under Schor a party “could not ... waive his ‘structural’ claim” under Article III. Kuretski v. Comm‘r of Internal Revenue Serv., 755 F.3d 929, 937 (D.C.Cir.2014) (emphasis added); see In re BP RE, L.P., 735 F.3d 279, 287-90 (5th Cir.2013); Wellness Int‘l Network, Ltd. v. Sharif, 727 F.3d 751, 769 (7th Cir.2013) (rev‘d on other grounds); Waldman v. Stone, 698 F.3d 910, 917-18 (6th Cir.2012). Most recently, in Wellness International Network, Ltd. v. Sharif, 575 U.S. 665, 135 S.Ct. 1932, 191 L.Ed.2d 911 (2015), the Supreme Court again confirmed that ”Schor forbids [] using consent to excuse an actual violation of Article III.” Id. at 1945 n. 10; see id. at 1942-43, 1943-44; accord id. at 1956 (Roberts, C.J., dissenting).
Of course, the issue before us is not waiver but forfeiture. See generally United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The Supreme Court‘s analysis of waiver in Schor applies to forfeiture as well. There, the Court rejected waiver of Article III § 1 claims “for the same reason” that parties cannot waive Article III § 2 jurisdictional limitations, 478 U.S. at 851, which are not subject to forfeiture, see United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The Court cited United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 82 L.Ed. 764 (1938), where it had addressed de novo a subject-matter jurisdiction challenge that the defendants had failed to raise in the district court. In Schor, the Court explained that the analogy stems from the fact that both “Article III limitations ... serve institutional interests that the parties cannot be expected to protect.” 478 U.S. at 851. As four Justices observed in Freytag v. Comm‘r of Internal Revenue, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), “[i]t is clear from our opinion in Schor that we had the analogy to Article III subject-matter jurisdiction in mind.” Id. at 897 (Scalia, J., joined by O‘Connor, Kennedy,
Such searching, de novo review is appropriate because Bahlul‘s Article III challenge implicates the power of the political branches to sideline the federal courts. “Trial by military commission raises separation-of-powers concerns of the highest order.” Hamdan v. Rumsfeld, 548 U.S. 557, 638, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (Kennedy, J., concurring in part). “Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts....” Reid v. Covert, 354 U.S. 1, 21, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality op.). The government has conceded, in light of Schor, that to the extent Bahlul raises a structural challenge, it is subject to de novo review. See Appellee‘s Br. 50; Oral Arg. Tr. 29, 30. It mistakenly suggests, however, that Bahlul‘s Article III challenge asserts only his personal right to a jury trial, which is subject to forfeiture and thus plain error review. See Appellee‘s Br. 49-50. This ignores Part II of Bahlul‘s brief where he discusses the “judicial power” and relies on Article III structural precedent of the Supreme Court in maintaining that “[t]his [c]ourt must be sure that the political branches are not seeking to ‘chip away at the authority of the Judicial Branch.... Slight encroachments create new boundaries from which legions of power can seek new territory to capture.‘” Appellant‘s Br. 27 (quoting Stern, 131 S.Ct. at 2620 (quoting Reid, 354 U.S. at 39 (plurality op.))); see id. at 27-37; Reply Br. 20.
Our dissenting colleague misreads Schor in maintaining that its holding, quoted above, does not speak to waivability or forfeitability at all. Dis. Op. 33-37. To the contrary, the Supreme Court, at that point in its opinion, was addressing the distinction between the waivability of the right component and the structural component of Article III § 1, and concluded that only the former was waivable. See Schor, 478 U.S. at 848-51. The Court reiterated that distinction in Sharif, and emphasized that Schor “forbids” waiver of the latter, id. at 1945 n. 10. The dissent suggests that Schor‘s non-waiver holding applies only to substantive rights, not arguments. See Dis. Op. 36-37. But the analysis in Schor applied to both “consent and waiver,” 478 U.S. at 851 (emphasis added), and later Supreme Court precedent confirms that Schor‘s non-waiver holding applies to “defense[s],” “doctrine[s],” “challenge[s],” and “claim[s],” not just rights, Plaut, 514 U.S. at 231-32. Indeed, the discussion in Plaut about excusing waiver in the res judicata context would make little sense if waiver meant there was no violation in the first place. See id. at 231. Under Schor and Sharif, parties can waive neither a separation-of-powers violation nor a separation-of-powers challenge. Our colleague also confuses Sharif‘s analysis by conflating the individual right and the structural interest protected by Article III § 1. See Dis. Op. 34-36. Each acknowledgment of waivability
Our dissenting colleague, also misinterprets Sharif to suggest that structural Article III claims can be forfeited. See Dis. Op. 35-36. Having decided the structural question de novo, the Court remanded two questions: Whether Sharif had in fact consented to adjudication by the bankruptcy court, and if so, whether he had forfeited his right to adjudication by an Article III judge by failing to raise an Article III objection in the district court. Sharif, 135 S.Ct. at 1941, 1948-49. The reference to forfeiture is unremarkable. If the Seventh Circuit on remand finds that Sharif consented, then all that is left for the Seventh Circuit to decide is Sharif‘s personal right claim, and it has always been clear that individual rights—even individual Article III rights—are subject to forfeiture. The Court resolved the structural issue de novo without regard to any possible forfeiture. Even the Justice who was certain that Sharif had forfeited his constitutional claim thought it proper to resolve the structural Article III issue de novo. See id. at 1949 (Alito, J., concurring in part and concurring in the judgment). Indeed, the Court tied its remand instruction to the contentions in the petitioners’ brief, see id. at 1948-49, which acknowledged there are some Article III claims that “raise ‘structural’ concerns that litigants may not waive or forfeit.” Br. for Pet‘rs Wellness Int‘l, et al. 52.
Our analysis would not change even if, as the dissent maintains, the Court in Schor had instructed that courts should excuse waivers of Article III structural claims, instead of holding that such claims were unwaivable. See Dis. Op. 33-34, 37. The Article III challenge in Bahlul‘s case goes to the heart of the judiciary‘s status as a coordinate branch of government. Our colleague‘s focus on the fact that Bahlul is “concededly—and unapologetically—guilty of the charged offenses,” id. at 40, is a red herring. To excuse forfeiture would not be for the purpose of protecting an individual defendant, but to “safeguard[] the role of the Judicial Branch in our tripartite system.” Schor, 478 U.S. at 850. The court would vindicate “the federal judiciary‘s strong interest[s],” Kuretski, 755 F.3d at 937 (emphasis added), not merely Bahlul‘s. Any disruption to normal appellate process, see Dis. Op. 37-39, 39 n. 8, is “plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers” under Article III. Glidden Co. v. Zdanok, 370 U.S. 530, 536, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). To the extent the dissent insists that this court lacks the power to excuse forfeiture, see Dis. Op. 37-38; contra Nguyen v. United States, 539 U.S. 69, 80, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003), it relies on precedent applying
We turn to the merits of Bahlul‘s structural Article III challenge to his conspiracy conviction.
II.
“Article III, § 1, of the Constitution mandates that ‘[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.‘” Stern, 131 S.Ct. at 2608. Section 2, clause 1, provides that “[t]he judicial Power shall extend” to, among others, “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” and “to Controversies to which the United States shall be a Party.” These cases and controversies include criminal prosecutions. See United States ex rel. Toth v. Quarles, 350 U.S. 11, 15, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121, 18 L.Ed. 281 (1866). Article III § 2 requires that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”
Article III is an inseparable element of the constitutional system of checks and balances that both defines the power and protects the independence of the Judicial Branch. Under the basic concept of separation of powers that flows from the scheme of a tripartite government adopted in the Constitution, the “judicial Power of the United States” can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.
Stern, 131 S.Ct. at 2608 (alterations and some internal quotation marks omitted) (quoting
If a suit falls within the judicial power, then “the responsibility for deciding that suit rests with Article III judges in Article III courts.” Id. at 2609. There are limited exceptions: Congress may create non-Article III courts to try cases in the District of Columbia and U.S. territories not within a state. See Palmore v. United States, 411 U.S. 389, 390-91, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 546, 7 L.Ed. 242 (1828). It may assign certain criminal prosecutions to courts martial, see Dynes v. Hoover, 61 U.S. (20 How.) 65, 79, 15 L.Ed. 838 (1857), and military commissions, see Ex parte Quirin, 317 U.S. 1, 46, 63 S.Ct. 2, 87 L.Ed. 3 (1942). And it may assign to administrative agencies the adjudication of disputes involving “public rights” stemming from federal regulatory programs. See Stern, 131 S.Ct. at 2610; Murray‘s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284, 15 L.Ed. 372 (1855). There are three types of military commissions. See, e.g., Hamdan, 548 U.S. at 595-98 (plurality op.), 683 (Thomas, J., dissenting). Bahlul was tried by a law of war military commission, Bahlul, 767 F.3d at 7, so the question is whether conspiracy falls
A.
The Supreme Court addressed the contours of the exception to Article III for law of war military commissions in the seminal case of Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942). There, Nazi soldiers found out of uniform in the United States during World War II were convicted of sabotage and other offenses by a law of war military commission. They challenged their convictions on the ground that Article III guaranteed them a right to trial by jury in civil court. The Supreme Court held that the law of war military commission had jurisdiction to try “offense[s] against the law of war,” of which sabotage was one. Id. at 46. The Court explained that Article III § 2 was intended
to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future, but not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right.
Id. at 39 (citation omitted). Given this “long-continued and consistent interpretation,” the Court stated “that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts.” Id. at 40. “[S]ince the founding of our government” and continued in the Articles of War, Article III has been construed “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 Quirin, the Supreme Court described the law of war as a “branch of international law,” 317 U.S. at 29, and defined “the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.” Id. at 27-28. The Court stated that Congress had exercised its authority to define and punish offenses against the law of nations by sanctioning the jurisdiction of military commissions to try persons for 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. Id. at 28. In addition to international precedents, see id. at 30 n. 7, 31 n. 8, 35 n. 12, the Court also considered domestic precedents (during the American Revolution, the War of 1812, and the Mexican and Civil Wars, see id. at 31 nn. 9 & 10, 42 n. 14), but only as potential limits on the law of war. The Court explained:
We may assume that there are 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.
Id. at 29 (citing, as an example of the latter, Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866)). Thus, “our courts” may recognize fewer law of war offenses than other countries’ courts, whether because they disagree about the content of international law or because of independent constitutional limitations. In
The Supreme Court has adhered to Quirin‘s understanding of the meaning of the “law of war” for over seventy years. In Application of Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946), the Court reaffirmed Quirin‘s “governing principles,” id. at 9, and its statement that Congress had exercised its power to “define and punish Offenses against the Law of Nations, of which the law of war is a part,” id. at 7 (alterations omitted) (citing
The Supreme Court‘s reason in Quirin for recognizing an exception to Article III—that international law of war offenses did not entail a right to trial by jury at common law, 317 U.S. at 40-41—does not apply to conspiracy as a standalone offense. The Court in Quirin held that the international law of war offense of unlawful belligerency was triable by law of war military commissions. 317 U.S. at 36, 46. Although the Court had no occasion to speak more broadly about whether other offenses came within the Article III exception, its reasoning precludes an Article III exception for conspiracy, which did entail a right to trial by jury at common law. In Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888), cited in Quirin, 317 U.S. at 39, the Court pointed to authorities “sufficient to show” that “the nature of the crime of conspiracy at common law ... [was] an offense of a grave character, affecting the public at large,” such that a person so charged could not be tried without a jury, see Callan, 127 U.S. at 556. The reasoning in Quirin also counsels against expanding the exception beyond international law of war offenses. Stating that “[f]rom the very beginning of its history th[e] Court has recognized and applied the law of war as [being] part of the law of nations,” Quirin, 317 U.S. at 27, the Court explained that some offenses may not be triable by military
B.
The parties agree that Bahlul was tried by a law of war military commission that had jurisdiction to try charges for offenses against the law of war as defined in Quirin. The government concedes that conspiracy is not a violation of the international law of war. See U.S. Appellee‘s Br. to the En Banc Court at 34 (July 10, 2013). The question, therefore, is whether a law of war military commission may try domestic offenses—specifically conspiracy—without intruding on the judicial power in Article III.
The government insists that the Article III exception identified in Quirin is not limited to international law of war offenses because “the sabotage offense at issue in Quirin—which the Court viewed as akin to spying—is not and has never been an offense under the international law of war.” Appellee‘s Br. 54. Yet the Supreme Court in Quirin concluded otherwise. It looked to “authorities on International Law” who “regarded as war criminals” saboteurs who passed behind enemy lines without uniform. 317 U.S. at 35 & n. 12. It relied on international sources to establish that the offense was recognized “[b]y universal agreement and practice.” Id. at 30 & n. 7, 31 n. 8, 35 n. 12. And it quoted language from early statutes and military tribunal proceedings where spying was identified as punishable by military tribunal under the “law and usage of nations.” Id. at 31 n. 9, 41. The government points to scholarly criticism of the Court‘s conclusion, see Appellee‘s Br. 32, but this court is bound by the Supreme Court‘s analysis in Quirin, which was premised on sabotage being an international offense. See Quirin, 317 U.S. at 35-36.
Alternatively, the government maintains that even if Quirin did not extend the Article III exception to domestic offenses, historical practice demonstrates that it has been so extended. See Appellee‘s Br. 20, 31-39. The Supreme Court, however, when relying on historical practice to analyze the separation of powers, has required much more evidence of a settled tradition than the government has identified. For instance, in Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 71 L.Ed. 160 (1926), the Court held, upon reviewing more than seven decades in which Presidents had continuously removed Executive Branch officers without congressional involvement, that Congress lacked authority to restrict the President‘s removal power. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), the Court rejected, in view of an “unbroken legislative practice which has prevailed almost from the inception of the national government to the present day,” the argument that a joint resolution of Congress authorizing the President to determine whether to embargo the sale of arms and munitions to belligerents in a foreign war was an unlawful delegation of legislative power. Id. at 322. Recently, in National Labor Relations Board v. Noel Canning, 573 U.S. 513, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Court defined the scope of the President‘s authority under the Recess Appointments Clause,
The history on which the government relies fails to establish a settled practice of trying non-international offenses in law of war military commissions. The longstanding statutes conferring military jurisdiction over charges of spying and aiding the enemy do not, as the government maintains, demonstrate that domestic offenses come within the Article III exception. The Congresses that enacted those statutes viewed those offenses as punishable under the international law of war. The 1806 statute “imposed the death penalty on alien spies ‘according to the law and usage of nations, by sentence of a general court martial.‘” Quirin, 317 U.S. at 41 (quoting Act of Congress of Apr. 10, 1806, 2 Stat. 371). A 1776 Resolution adopted by the Continental Congress contained a nearly identical provision. Id. at 41 & n. 13 (citing Edmund M. Morgan, Court-Martial Jurisdiction over Non-Military Persons Under the Articles of War, 4 Minn. L.Rev. 79, 107-09 (1920) (quoting Resolution of Aug. 21, 1776, 1 JOURNALS OF CONGRESS 450)). In 1865, the Attorney General of the United States, James Speed, concluded in a formal opinion that “to act as spy is an offence against the laws of war,” and that “every lawyer knows that a spy was a well-known offender under the laws of war.” Military Commissions, 11 Op. Att‘y Gen. 297, 312, 313 (1865). The oft-cited William Winthrop, the “Blackstone of Military Law,” Hamdan, 548 U.S. at 597 (plurality op.) (quoting Reid, 354 U.S. at 19 n. 38), reached the same conclusion. See W. Winthrop, MILITARY LAW AND PRECEDENTS 769-70 (2d ed.1920). Even authority relied upon by the government indicates that during the early Republic spies were considered “war criminals.” See Appellee‘s Br. 31-32 (quoting 2 L. Oppenheim, INTERNATIONAL LAW 287 (4th ed.1926)).
But even if spying and aiding the enemy were not international offenses, their historical pedigrees stand in marked contrast to that of conspiracy. Both of those offenses have been subject to military jurisdiction since the ratification of the Constitution. See Quirin, 317 U.S. at 41; Act of Apr. 10, 1806, 2 Stat. 359, 371. Congress has reenacted the spying and aiding the enemy statutes on multiple occasions, see, e.g., Act of June 4, 1920, Pub.L. No. 66-242, 41 Stat. 759, 804; Act of Aug. 29, 1916, Pub.L. No. 64-242, 39 Stat. 619, 663; Act of Mar. 3, 1863, 12 Stat. 731, 737, and scores of law of war military tribunals have tried the offenses, see Quirin, 317 U.S. at 42 n. 14. When analyzing separation-of-powers challenges, the Supreme Court has explained, “the practical construction of the [C]onstitution, as given by so many acts of [C]ongress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land.” Marshall Field & Co. v. Clark, 143 U.S. 649, 691, 12 S.Ct. 495, 36 L.Ed. 294 (1892); see Mistretta v. United States, 488 U.S. 361, 401, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309, 2 L.Ed. 115 (1803).
The history of inchoate conspiracy being tried by law of war military tribunals is thin by comparison and equivocal at best.
First, although the charges against the Lincoln assassins referred to conspiracy, the specifications listed the elements of the completed offense. See J. Holt & T. Ewing, CHARGE AND SPECIFICATION AGAINST DAVID E. HEROLD, ET AL. 3 (1865) (Petr.‘s. Supp. App‘x 77-78); see also Hamdan, 548 U.S. at 604 n. 35; id. at 609. The Attorney General‘s formal opinion in 1865 described the charge as “the offence of having assassinated the President.” 11 Op. Att‘y Gen. at 297; see id. at 316-17. At the time, it was unclear that conspiracy could even be charged separately from the object offense, once completed. See Iannelli v. United States, 420 U.S. 770, 781 & n. 13, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (citing Hampton L. Carson, The Law of Criminal Conspiracies and Agreements as Found in the American Cases, in R. Wright, THE LAW OF CRIMINAL CONSPIRACIES AND AGREEMENTS 191 (1887)). When Congress first enacted a conspiracy statute in 1867, the offense carried only a two-year penalty. See Act of Mar. 2, 1867, 14 Stat. 471, 484.
Because of conspiracy‘s uncertain legal status at the time, the dissent‘s theory that “[t]he circumstances surrounding the Lincoln assassination” indicate that “the criminal defendants could only have been charged with conspiracy,” Dis. Op. 60 (emphasis in original), is mere speculation, especially in view of the contrary contemporary analysis by the Attorney General. See 11 Op. Att‘y Gen. at 297, 316-17. Moreover, Winthrop noted that the Lincoln assassins’ tribunal was a mixed martial law and law of war military commission. See W. Winthrop, MILITARY LAW AND PRECEDENTS, at 839 & n. 5; cf. id. at 842. The dissent appears to disagree with Winthrop (on whom it otherwise relies, see Dis. Op. 55, 58-59, 62) regarding the jurisdictional basis for the assassins’ tribunal. Compare id. at 60-61, with W. Winthrop, MILITARY LAW AND PRECEDENTS, at 839 & n. 5. The dissent further ignores Winthrop‘s explanation that conspiracy was a “civil crime” or “crime against society” and not a law of war offense. W. Winthrop, MILITARY LAW AND PRECEDENTS, at 842. Where Winthrop listed the law of war violations that had “principally” been charged in U.S. military commissions, conspiracy was not among them. See id. at 839-40. In response, the dissent cites Milligan, 71 U.S. at 127, for the proposition that military tribunals cannot exercise martial law jurisdiction unless the civil courts are closed, see Dis. Op. 60-61, even though Milligan was decided after the Lincoln assassins’ prosecution. The unreported district court opinion in Ex parte Mudd, 17 F. Cas. 954 (1868), hardly strengthens the dissent‘s position, see Dis. Op. 60-61 n. 21; the district court described the offense as “assassination” and only used “conspiracy” in the same terms as the charging document, while distinguishing Milligan based on the state of war in the Capital, not based on the nature of the offense. Mudd, 17 F. Cas. at 954.
Second, although the charges against the Nazi saboteurs in Quirin included conspiracy to commit the charged offenses, the Court upheld the jurisdiction of the law of war military commission only as to the charge of sabotage and did not mention the conspiracy charge in its analysis. See Quirin, 317 U.S. at 46. Similarly, although William Colepaugh was convicted of sabotage and spying, in addition to conspiracy to commit those offenses, the U.S. Court of Appeals for the
Third, the government asserts that “during the Civil War, defendants were regularly convicted of conspiracies that were charged as unconsummated offenses,” Appellee‘s Br. 37, but it cites only a single instance. Col. George St. Leger Grenfel was convicted by a military tribunal of conspiracy to free prisoners of war in Chicago and to destroy that city. See GENERAL COURT-MARTIAL ORDERS No. 452 (Aug. 22, 1865). As Bahlul points out, however, Grenfel‘s commission, like that of the Lincoln assassins, was a “hybrid” commission exercising jurisdiction based in part on the President‘s declaration of martial law. See Reply Br. 18 (citing Hamdan, 548 U.S. at 609 n. 37; W. Winthrop, MILITARY LAW AND PRECEDENTS, at 839 n. 5); S. Starr, COLONEL GRENFELL‘S WARS: THE LIFE OF A SOLDIER OF FORTUNE, 5, 219 (1971) (cited in Appellee‘s Br. 37). In defending the Grenfel commission‘s jurisdiction, the prosecution relied on the fact that “martial law obtained throughout the United States and the Territories during the continuance of the [Civil] [W]ar.” Judge Advocate‘s Reply, Courtroom, Cincinnati, Ohio, Jan. 17, 1865, United States v. Walsh, et al., reprinted in H. EXEC. DOC. No. 50, 39th Cong., 2d Sess., at 20. The Grenfel commission, like the Lincoln assassins’ commission, “is at best an equivocal” case. Hamdan, 548 U.S. at 604 n. 35.
The historical examples identified by the government thus fall far short of what the Supreme Court has required when using historical practice to interpret the constitutional separation of powers. Our dissenting colleague adds only the orders of General MacArthur and General Wedemeyer from the end of World War II and the Korean Conflict. See Dis. Op. 62 & nn. 22-23. But the en banc court dismissed the persuasive force of such military orders for lack of high-level Executive Branch consultation. See Bahlul, 767 F.3d at 25 n. 16. And during the Korean Conflict there apparently were no trials conducted by United Nations Military Commissions. See Jordan J. Paust et al., INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS 724 (1996).
Finally, the government asserts that any “enemy belligerent” can be tried by a military commission regardless of the offense. Appellee‘s Br. 56. But the Supreme Court has focused on “the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged.” Quirin, 317 U.S. at 29 (emphasis added). Thus, in Quirin, the Court “assume[d] that there are acts” that could not be tried by military commission “because they are of that class of offenses constitutionally triable only by a jury.” Id. (emphasis added). Likewise, in Yamashita, the Court “consider[ed] ... only the lawful power of the commission to try the petitioner for the offense charged.” 327 U.S. at 8 (emphasis added). In Hamdan, the Court explained that the status of the offender (being a member of
C.
This court need not decide the precise relationship between Bahlul‘s Article I and Article III challenges. In Quirin, the Supreme Court‘s Article III analysis did not look to Article I at all. See Quirin, 317 U.S. at 38-46. In some contexts, however, Article III exceptions have turned on the extent of congressional power. See Palmore, 411 U.S. at 402-04; Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 236-38, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960). Upon examining the government‘s Article I contentions, we conclude that they do not call into question the conclusion that the Article III exception for law of war military commissions does not extend to the trial of domestic crimes in general, or inchoate conspiracy in particular.
1. The government maintains that the war powers in Article I vest Congress with broad authority to subject war-related offenses to the jurisdiction of military commissions. See Appellee‘s Br. 27-30. The war powers include the power to “define and punish ... Offences against the Law of Nations,”
The Supreme Court has looked to the Define and Punish Clause in determining whether Congress may designate particular offenses within the jurisdiction of a law of war military commission. The Court in Quirin, Yamashita, and Hamdan did look to the war powers in discussing congressional authority to establish military commissions. See Hamdan, 548 U.S. at 591; Yamashita, 327 U.S. at 12; Quirin, 317 U.S. at 26; see also W. Winthrop, MILITARY LAW AND PRECEDENTS, at 831 (stating that Congress‘s power “to ‘declare war’ and ‘raise armies‘” provided the “original sanction” for military commissions). But in addressing Congress‘s authority to confer jurisdiction over particular offenses, the Court has consistently looked to the Define and Punish Clause alone. See Hamdan, 548 U.S. at 601-20; Yamashita, 327 U.S. at 7; id. at 26 (Murphy, J., dissenting); Quirin, 317 U.S. at 28. In Yamashita, the Court emphasized the distinction, explaining that “the [military] commission derives its existence” from the war powers, 327 U.S. at 12 (emphasis added), but that its jurisdiction over specific offenses comes from Congress‘s “exercise of the power conferred upon it by
In applying the Define and Punish Clause, the Supreme Court long ago cautioned that “[w]hether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by [C]ongress.” United States v. Arjona, 120 U.S. 479, 488, 7 S.Ct. 628, 30 L.Ed. 728 (1887). As noted, the government has conceded that conspiracy is not an international war crime. Notwithstanding the atrocities at issue, the International Military Tribunal at Nuremberg considered and rejected conspiracy to commit war crimes as an international law of war offense. See 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL: NUREMBERG, 14 NOVEMBER 1945-1 OCTOBER 1946, at 469 (1948). Conspiracy to commit war crimes is included neither in the major treaties on the law of war,1 nor in the jurisdiction of modern war crimes tribunals.2 Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not. See United States v. Furlong, 18 U.S. (5 Wheat.) 184, 198, 5 L.Ed. 64 (1820). The exceptions—conspiracy to commit genocide and common plan to wage aggressive war, see Hamdan, 548 U.S. at 610 (plurality op.)—are not at issue here, for Bahlul was charged with neither. In light of the international community‘s explicit and re-
peated
Our dissenting colleague also maintains that this court must accord Congress “extraordinary deference when it acts under its Define and Punish Clause powers.” Dis. Op. 45 (quoting Bahlul, 767 F.3d at 59 (Brown, J., concurring in the judgment in part and dissenting in part)). This court has no occasion to decide the extent of that deference because the government has never maintained that Congress defined conspiracy in the 2006 MCA as a violation of the law of nations. The legislative history of the 2006 MCA is not to the contrary. See id. at 51 n. 17. In maintaining otherwise, the dissent confuses acting pursuant to the Define and Punish Clause with identifying the content of the law of nations, see id. at 50-52; Congress purported to do the former, not the latter. In Bahlul‘s case, the “law of nations” is not “too vague and deficient to be a rule,” id. at 44 (quotation marks omitted); to the contrary, it quite clearly does not view conspiracy to be an independent war crime, as the government has conceded.
To the extent our colleague would interpret the Define and Punish Clause to confer open-ended congressional authority to create new war crimes, see Dis. Op. 47-50, the Supreme Court has rejected such an approach. In Furlong, 18 U.S. (5 Wheat.) 184, the Court explained with regard to piracy, the other object of the Define and Punish Clause: “If by calling murder piracy, [Congress] might assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought within their power by the same device?” Id. at 198 (emphasis in original). The same reasoning applies to “Offenses against the Law of Nations,” the other object of the Define and Punish Clause.
The dissent‘s reliance on Yamashita as support for its understanding of the Define
2. Nor does the Necessary and Proper Clause allow Congress to do what its express powers do not. See Toth, 350 U.S. at 21-22. The government maintains that even if Congress‘s authority arose only under the Define and Punish Clause, “Congress is not restricted under that Clause only to criminal offenses that are violations of international law.” Appellee‘s Br. 43. “Rather, Congress may, under the Necessary and Proper Clause, proscribe conspiracy to commit war crimes, such as terrorist attacks against civilians, that are themselves violations of the law of nations as a necessary and proper implementation of its power and responsibility to prevent and punish such violations.” Id. The Supreme Court has adopted a different view.
In Toth, 350 U.S. at 22, the Supreme Court explained that it was “not willing to hold that power to circumvent [jury] safeguards should be inferred through the Necessary and Proper Clause.” It described the “great difference between trial by jury and trial by selected members of the military forces,” id. at 17, and explained that “[t]here are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution,” id. at 22. In Singleton, the Court rejected expansion of military jurisdiction through the Necessary and Proper Clause because “[t]his Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the safeguards of Article III and the Fifth and Sixth Amendments.” 361 U.S. at 246. The Court explained: “If the exercise of the power is valid it is because it is granted in Clause 14 [the Make Rules Clause], not because of the Necessary and Proper Clause.” Id. at 247. “We are therefore constrained to say that since this Court has said that the Necessary and Proper Clause cannot expand Clause 14 so as to include prosecution of civilian dependents for capital crimes, it cannot expand Clause 14 to include prosecution of them for noncapital offenses.” Id. at 248. As the plurality in Reid emphasized, “the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law.” 354 U.S. at 21; see Hamdan, 548 U.S. at 590 (plurality op.). Consequently, “the Necessary and Proper Clause cannot operate to extend military jurisdiction to any group of persons beyond that class described in” an enumerated Article I power. Reid, 354 U.S. at 20-21 (plurality op.). “Under the grand design of the Constitution civilian courts are the normal repositories of power to try persons charged with crimes against the United States.” Id. at 21.
The government‘s response is that Congress may enact legislation “necessary to comply with our nation‘s international responsibilities.” Appellee‘s Br. 45. In Arjona, 120 U.S. at 484, the Supreme Court upheld a counterfeiting prohibition because “[t]he law of nations requires every national government ... to punish those who, within its own jurisdiction, counterfeit the money of another nation.” The Court observed that without the criminal statute, the United States would “be unable to perform a duty which they may owe to another nation, and which the law of nations has imposed on them as part of their international obligations.” Id. at 487. Here, the government points to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (“Geneva IV“), which prohibits “[c]ollective penalties and likewise all measures of intimidation or of terrorism.” Id. art. 33. The Convention requires signatories to “undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention,” id. art. 146, which include the “willful killing ... of a protected person,” id. art. 147, defined as “those who ... find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals,” id. art. 4. Each signatory “shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention.” Id. art. 146.
Even if Congress has authority to criminalize non-international offenses pursuant to the Define and Punish Clause, as supplemented by the Necessary and Proper Clause, the government fails to explain why such congressional power to prohibit conduct implies the power to establish military jurisdiction over that conduct. Military jurisdiction over the offenses that the Supreme Court has previously upheld under the Define and Punish Clause—such as spying and sabotage—have a textual basis in the Constitution: The “Law of Nations,”
The government maintains that under the Necessary and Proper Clause, “[i]f commission of the substantive crime that is the conspiracy‘s object would be within the scope of permissible congressional regulation, then so is the conspiracy.” Appellee‘s Br. 45. But again, Bahlul‘s Article III challenge is not that Congress lacks authority to prohibit his conduct; rather, he challenges Congress‘s authority to confer jurisdiction in a military tribunal. Absent a textual or historical basis for prosecuting conspiracy as a standalone offense in a law of war military commission, the government
D.
Before concluding we address some further flaws in our dissenting colleague‘s opinion.
First, the dissent relies on inapposite authorities regarding the source of congressional authority for law of war military commissions. Its citations refer to military commissions exercising jurisdiction far beyond the law of war. Thus, in Ex parte Milligan, 71 U.S. 2, the four Justices cited by the dissent, see Dis. Op. 56, were discussing courts martial and military commissions whose jurisdiction was based on military government and martial law. See Milligan, 71 U.S. at 141-42 (Chase, C.J., concurring in the result); see generally Hamdan, 548 U.S. at 595-98 (plurality op.), 683 (Thomas, J., dissenting); Bahlul, 767 F.3d at 7. The constitutional authority for those commissions, whose jurisdiction may include domestic crimes, see Hamdan, 548 U.S. at 595-96; Bahlul, 767 F.3d at 7, does not extend to law of war commissions. The dissent‘s reliance on Madsen v. Kinsella, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988 (1952); see Dis. Op. 56, 57-58, 59, is likewise misplaced; that case involved a military-government commission, not a law of war military commission. Madsen, 343 U.S. at 343-44, 345-48. And the dissent‘s reliance on Winthrop‘s statement that “in general, it is” the war powers “from which the military tribunal derives its original sanction,” Dis. Op. 58 (alterations omitted) (quoting W. Winthrop, MILITARY LAW AND PRECEDENTS, at 831), ignores both that Winthrop was discussing all three kinds of military commission, stating the commission‘s “authority is thus the same as the authority for the making and waging of war and for the exercise of military government and martial law,” and that Winthrop looked exclusively to the Define and Punish Clause as the source of authority for law of war commissions to try spying and aiding the enemy, see W. Winthrop, MILITARY LAW AND PRECEDENTS, at 831.
Second, the dissent maintains that if conspiracy does not fall within the Article III exception for law of war military commissions, then Bahlul‘s conviction must be affirmed under Schor‘s multi-factor balancing approach. See Dis. Op. 65-69. The Supreme Court has never suggested that an entire criminal adjudication outside an established Article III exception could ever satisfy the Schor analysis. The dissent cites Palmore to suggest otherwise, see id. at 65, but the Court conducted no balancing analysis in Palmore because the case involved a criminal adjudication within the established Article III exception for territorial courts. Palmore, 411 U.S. at 403; see Northern Pipeline, 458 U.S. at 55 & n. 16. But even accepting the dissent‘s premise, its analysis fails on its own terms. Bahlul‘s military commission is on the wrong side of nearly every balancing factor that the Supreme Court has applied.
With respect to what the dissent characterizes as the “most important[]” factor, Dis. Op. 66, the 2006 MCA provides for appellate review “only with respect to matters of law, including the sufficiency of the
In Sharif, where the Court upheld adjudication by bankruptcy courts outside the established Article III exception, the two necessary factors were the parties’ consent to the adjudication, and the fact that “Article III courts retain[ed] supervisory authority over the process.” Sharif, 135 S.Ct. at 1944. Neither is true in Bahlul‘s case. First, the Court in Sharif emphasized that litigant consent has been a crucial factor in its prior decisions on non-Article III adjudication: In Schor, the Court “[l]ean[ed] heavily on the importance of Schor‘s consent.” Sharif, 135 S.Ct. at 1943; see id. at 1945 n. 10. Subsequent decisions by the Supreme Court involving the Federal Magistrates Act “reiterated the importance of consent to the constitutional analysis.” Id. at 1943. And in both Stern and Northern Pipeline, compliance with Article III “turned on” whether the litigant “truly consent[ed]” to the adjudication. Id. at 1946 (internal quotation marks omitted). Bahlul plainly did not “consent” to his trial by military commission. As the en banc court observed, he “objected to the commission‘s authority
to try him” and “flatly refused to participate in the military commission proceedings,” even assuming his objections were “too general” to raise specific legal claims. Bahlul, 767 F.3d at 10 (internal quotation marks omitted); see Trial Tr. 96-97 (“Bahlul has made it very clear that he is boycotting and that he does not recognize this commission.“); contra Dis. Op. 66. Second, the Court in Sharif relied on the fact that bankruptcy judges are appointed, referred cases, allowed to keep cases, supervised, and removable by Article III judges, who thus retain “total control and jurisdiction” over bankruptcy adjudication. Sharif, 135 S.Ct. at 1944-45 (internal quotation marks omitted); see id. at 1939-40. The Court expressly conditioned its holding on this level of “control by the Article III courts.” Id. at 1944, 1946 Nothing of the sort is true in Bahlul‘s case. Military commissions under the 2006 MCA are independent of the Article III courts except for very limited appellate review.
Another factor the Supreme Court has considered is the “concern[] that drove Congress to depart from the requirements of Article III.” Schor, 478 U.S. at 851, 106 S.Ct. 3245. In non-Article III adjudications upheld by the Supreme Court, Congress‘s “concern” was the fact that an ostensibly “private” claim was so “closely intertwined with a federal regulatory program,” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 54, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), that the program would be “confounded” without the ability to adjudicate that claim. Schor, 478 U.S. at 856, 106 S.Ct. 3245; see Sharif, 135 S.Ct. at 1944-45; Stern, 131 S.Ct. at 2613-14; Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 593-94, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). Neither the government nor the dissent offer any reason to conclude that otherwise-valid military commission prosecutions will be “confounded” by the inability to prosecute non-law of war offenses.
Bahlul‘s military commission fails a number of other Schor factors the dissent neglects to mention. The military commission resolves “all matters of fact and law in whatever domains of the law to which” a charge may lead. Stern, 131 S.Ct. at 2610 (internal quotation marks and alterations omitted). It “issue[s] final judgments, which are binding and enforceable,” id. at 2610-11 (quoting Northern Pipeline, 458 U.S. at 85-86, 102 S.Ct. 2858 (plurality op.)); see Schor, 478 U.S. at 853, 106 S.Ct. 3245, and “subject to review only if a party chooses to appeal,” Stern, 131 S.Ct. at 2619. As for the “origins and importance of the right to be adjudicated,” Schor, 478 U.S. at 851, 106 S.Ct. 3245, the right to “[f]reedom from imprisonment” is one of the oldest and most basic in our legal system. Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The circumstances of Bahlul‘s prosecution thus could not be further from Schor. There, Congress added to an Article I tribunal otherwise within an established Article III exception the authority to adjudicate a closely intertwined common-law cause of action, only with the consent of the parties, without authority to issue final enforceable judgments, and with meaningful factual review on appeal. Here, in Bahlul‘s case, Congress has created a standalone Article I tribunal to adjudicate his entire criminal case without his consent, with the ability to issue final enforceable judgments, and with almost no factual review on appeal.
If Bahlul‘s military commission falls outside the historical Article III exception for law of war military commissions, then there is no question that it usurps “the essential attributes of judicial power.” Schor, 478 U.S. at 851, 106 S.Ct. 3245 (internal quotation marks omitted). The
III.
For more than seventy years the Supreme Court has adhered to the definition of the law of war articulated in Quirin, which the government concedes does not prohibit conspiracy. The government has failed to identify a sufficiently settled historical practice for this court to conclude that the inchoate conspiracy offense of which Bahlul was convicted falls within the Article III exception for law of war military commissions. Absent further guidance from the Supreme Court, this court must apply the settled limitations that
Contrary to the government‘s suggestion, vacating Bahlul‘s inchoate conspiracy conviction does not “cast doubt on the constitutional validity of the most prominent military commission precedents in our nation‘s history.” Appellee‘s Br. 52. The Lincoln assassins and Colonel Grenfel were tried by mixed commissions, whose jurisdiction was based on martial law. The lawfulness of military commission jurisdiction over the charges against the Nazi saboteurs and Colepaugh was judicially upheld without having to reach the conspiracy charges. Neither does our holding “inappropriately restrict Congress‘s ability, in the absence of broad concurrence by the international community, to adapt the range of offenses triable by military commission in light of future changes in the practice of modern warfare and the norms that govern it.” Id. at 38. Military commissions retain the ability to prosecute joint criminal enterprise, aiding and abetting, or any other offenses against the law of war, however it may evolve. Congress retains the authority it has always had to proscribe domestic offenses through the criminal law in the civil courts. The international law of war limits Congress‘s authority because the Constitution expressly ties that authority to “the Law of Nations,”
Accordingly, we hold that Bahlul‘s conviction for inchoate conspiracy by a law of war military commission violated the separation of powers enshrined in
TATEL, Circuit Judge, concurring:
Although I agree that al Bahlul‘s conviction runs afoul of
Sitting en banc, this Court decided last year that the
So why the different result here? The answer is the standard of review. The en banc Court came down the way it did, and I voted the way I did, because al Bahlul had forfeited his ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the Court concluded that it was “not ‘obvious‘” that conspiracy was “not ... triable by law-of-war military commissions” at the time al Bahlul committed his crimes. Id. at 27.
The government insists that al Bahlul also failed to raise his
Under these circumstances, the en banc Court‘s conclusion that it was neither “clear” nor “obvious“—that is, not “plain“—that the law of war is purely international cannot determine the outcome of this case. However unclear the law and the evidence, we must decide not whether the error below was plain, but whether there was any error at all. In my view, whether
The search for precedent on that question begins and, for the most part, ends with Ex Parte Quirin. Although the en banc Court considered Quirin in some depth, our review here must be more searching, and that heightened standard leads me to a different result.
In Quirin, the Supreme Court described the contours of the military-commission exception: commissions, the Court ruled, may try enemy belligerents for violations of the “law of war.” Ex Parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942). That holding, of course, goes only so far. Because the conviction the Court sustained was for passing behind enemy lines out of uniform in order to attack military assets, and because the Court assumed that that crime violated the international law of war—whatever the contemporary scholarly view—it had no reason to decide whether the law-of-war exception was limited to international law. See Quirin, 317 U.S. at 36-37, 63 S.Ct. 2; Op. at 7-8.
That question is critical here because in defending the constitutionality of
In my view, the weight of the Court‘s language in Quirin strongly indicates that the law-of-war exception is exclusively international. Making this point repeatedly, the Court observed that in sending Quirin and his fellow saboteurs to a military commission, Congress had permissibly “exercised its authority ... by sanctioning ... the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of
Still, the Supreme Court never held—because it had no need to—that military commissions are barred from trying crimes recognized only by domestic law. Instead, it left that question for another day. That day looked like it would come in 2006 when the Court took up the case of Salim Hamdan, Osama Bin Laden‘s personal driver, who was convicted of, among other things, conspiring to commit acts of terrorism. Like al Bahlul, Hamdan argued that the military commission that convicted him lacked jurisdiction because conspiracy was not a violation of the law of war. The Court, however, never reached that issue because it resolved the case on statutory grounds, i.e., it held that the commission‘s procedures ran afoul of the
The government, though agreeing that the Hamdan Court never directly held that the law of war includes domestic precedent, nonetheless argues that “seven justices ... agreed that resolution of the question did not turn solely on whether conspiracy was a violation of international law.” Respondent‘s Br. 41. As the government points out, Justice Thomas, writing on behalf of himself and two other Justices, did embrace this proposition. See Hamdan, 548 U.S. at 689, 126 S.Ct. 2749 (Thomas, J., dissenting) (“The common law of war as it pertains to offenses triable by military commission is derived from the experience of our wars and our wartime tribunals, and the laws and usages of war as understood and practiced by the civilized nations of the world.“) (citation and internal quotation marks omitted). But Justice Kennedy, writing for himself and three other Justices, relied on Quirin for the proposition that the law of war “derives from ‘rules and precepts of the law of nations‘; it is the body of international law governing armed conflict,” id. at 641, 126 S.Ct. 2749 (Kennedy, J., concurring) (quoting Quirin, 317 U.S. at 28, 63 S.Ct. 2) (emphases added)—a definition that rules out resort to domestic law.
To be sure, Justice Stevens observed that “[t]he crime of ‘conspiracy’ has rarely if ever been tried as such in this country by any law-of-war military commission.” Id. at 603, 126 S.Ct. 2749 (Stevens, J., plurality opinion). The government, however, reads far too much into this reference to domestic practice, for in the very same sentence Justice Stevens emphasized that “international sources“—the Geneva Conventions and the Hague Conventions, which he described as “the major treaties on the law of war“—“confirm” that conspiracy “is not a recognized violation of the law of war.” Id. at 610, 126 S.Ct. 2749 (emphasis added). Justice Stevens described Quirin in similar terms: sabotage was triable by military commission in that case because it “was, by universal agreement and practice both in this country and internationally, recognized as an offense against the law of war.” Id. at 603, 126 S.Ct. 2749 (quoting Quirin, 317 U.S. at 30, 63 S.Ct. 2) (emphasis added) (internal quotation marks omitted). By stating that international law “confirms” that conspiracy is not a violation of the law of war, and by describing the Quirin sabotage as a
Thus, although the Court held in Hamdan that domestic law—namely, the
Moreover, and again proceeding on de novo review, I see nothing in
Although the foregoing is sufficient to resolve this case, the government makes one more argument that deserves attention. Limiting commission jurisdiction to offenses that violate international law, it asserts, “would ... inappropriately restrict Congress‘s ability, in the absence of broad concurrence by the international community, to adapt ... [to] future changes in the practice of modern warfare and the norms that govern it.” Respondent‘s Br. 38; see also Dissenting Op. at 43-44. I agree with the government‘s premise: that as a result of today‘s decision, Congress will be unable to vest military commissions with jurisdiction over crimes that do not violate the international law of war. But as explained above, that is precisely what the Constitution, as interpreted by the Supreme Court, requires.
By contrast, although the detention camp at the U.S. naval station at Guantánamo Bay has held at least 780 individuals since opening shortly after September 11th, and although military prosecutors have brought charges against some two hundred, the commissions have convicted only eight: al Bahlul, Hamdan, Noor Uthman Muhammed, David Hicks, Omar Khadr, Majid Khan, Ibrahim al Qosi, and Ahmed al Darbi. See MIAMI HERALD, Guantánamo: By the Numbers, http://goo.gl/SEPfV6 (last updated May 12, 2015). Furthermore, due to various questions about the military-commission process itself, as of this writing only three of those convictions—Khan‘s, al Darbi‘s, and al Qosi‘s—remain on the books and unchallenged.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
In 1952, the Honorable Robert H. Jackson—Associate Justice of the United States Supreme Court and former chief prosecutor at Nuremberg—set out what has become the “accepted framework” for our constitutional jurisprudence in the areas of national security and military affairs. Medellín v. Texas, 552 U.S. 491, 524, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). Justice Jackson famously identified three categories of governmental action. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). When the President and the Congress disagree (Category 3), their powers are subtractive. Id. at 637-38, 72 S.Ct. 863. When the President and the Congress act in concert (Category 1), however, their powers are additive: “the United States is invested with all the attributes of sovereignty” and the courts “should hesitate long before limiting or embarrassing such powers.” Id. at 635-37 & n. 2, 72 S.Ct. 863 (quoting Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297 (1915)) (emphasis omitted).
The immediate consequences of today‘s decision are serious enough: my colleagues bar the Government from employing military commissions to try individuals who conspire to commit war crimes against the United States. But the consequences moving forward may prove more alarming still. My colleagues’ opinion means that, in future conflicts, the Government cannot use military commissions to try enemy combatants for any law-of-war offense the international community has not element-by-element condoned. Their timing could not be worse. See Letter from the President to the Congress of the United States—Authorization for the Use of United States Armed Forces in Connection with the Islamic State of Iraq and the Levant (Feb. 11, 2015). And the beneficiary of today‘s decision could not be less deserving. Ali Hamza Ahmad Suliman al Bahlul (Bahlul) “is an alien unlawful enemy combatant who—like Hitler‘s Goebbels—led Osama bin Laden‘s propaganda operation.” Bahlul v. United States, 767 F.3d 1, 33-34 (D.C. Cir. 2014) (en banc) (Henderson, J., concurring). He “freely admitted“—indeed, bragged about—his role in the attacks of September 11, 2001. Id. at 34. During his military-commission trial, he never raised any of the arguments we today consider. The en banc court deemed his Ex Post Facto challenge forfeited and reviewed it for plain error only. Id. at 9-11. We should have taken the same approach here, rather than declaring unconstitutional a provision of the
Accordingly, I must dissent.
- Standard of Review ........................................................................................ 29
- The Constitutional Challenges ........................................................................ 42
- Article I ..............................................................................................
... 43 - Define and Punish Clause ..................................................................... 44
- Necessary and Proper Clause ................................................................ 52
- Broader War Powers .............................................................................. 55
- Supreme Court Precedent ............................................................... 56
- Winthrop‘s Treatise ......................................................................... 58
- Historical Practice ........................................................................... 59
- Article III ................................................................................................ 63
- Judicial Power Clause .......................................................................... 63
- Criminal Jury Clause ............................................................................ 69
- Equal Protection & First Amendment ................................................... 72
- Article I ..............................................................................................
I. STANDARD OF REVIEW
Beyond its troubling ramifications, one of the real tragedies of today‘s decision is just how unnecessary it is. Rather than reaching the merits, this case should begin and end with the “measuring stick” of appellate decisionmaking: the standard of review. John C. Godbold, Twenty Pages and Twenty Minutes: Effective Advocacy on Appeal, 30 Sw. L.J. 801, 810 (1976). The measuring stick we should use to review Bahlul‘s arguments is plain error.
Bahlul is an “alien unlawful enemy combatant” (enemy combatant) subject to trial by military commission under the 2006 MCA.
During the military-commission proceedings, as the en banc court determined, 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.” Bahlul, 767 F.3d at 7. He “flatly refused to participate” and “instructed his trial counsel not to present a substantive defense.” Id. at 10. When Bahlul did make objections, they were “couched entirely in political and religious terms.” Id. He began by accusing the United States of being “an enemy [of] the Nation of Muslims” that supports “the great injustice that is carried out by ... the Jews on the Muslims in Palestine.” Appendix (App.) 112. He concluded by disclaiming concern with the proceedings because they were based on earthly law, not Allah‘s dictates. App. 116. Although he made stray references to “discrimination” and the “illegal” nature of his trial, App. 114-15, his remarks were “unquestionably ‘too general to have alerted the trial court to the substance of his point.‘” Bahlul, 767 F.3d at 10 (quoting, inter alia, United States v. Bolla, 346 F.3d 1148, 1152 (D.C. Cir. 2003) (alteration omitted)). Bahlul therefore forfeited every substantive challenge to his conviction. See Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).
In other words, Bahlul violated the contemporaneous-objection rule. That rule requires a party to, in a phrase, “speak now or forever hold your peace“: if he fails to raise an argument in the trial court, he cannot raise it later on appeal. See id. at 135, 129 S.Ct. 1423; Miller v. Avirom, 384 F.2d 319, 321-22 (D.C. Cir. 1967). The contemporaneous-objection rule serves at least two purposes. First, it encourages fairness by penalizing sandbagging—i.e.,
The rule operates differently in civil and criminal cases. See Salazar ex rel. Salazar v. Dist. of Columbia, 602 F.3d 431, 437 (D.C. Cir. 2010). In civil cases, forfeiture is usually the end of the matter; the appellate court does not review the tardy argument at all, unless it excuses the forfeiture due to “exceptional circumstances.” Dist. of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1085 (D.C. Cir. 1984). In criminal cases—including these unique enemy combatant cases—forfeiture triggers plain-error review. Bahlul, 767 F.3d at 9 (citing, inter alia,
The plain-error standard applies to “all” forfeited arguments in a criminal case. Puckett, 556 U.S. at 136, 129 S.Ct. 1423; accord United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (“[W]e do not read [the Supreme Court‘s cases] as allowing for any exceptions to the application of the plain-error test for forfeited claims.“).1 There is only one type of argument that is nonforfeitable and therefore exempt from plain-error review: subject-matter jurisdiction. See United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. David, 96 F.3d 1477, 1482 (D.C. Cir. 1996); accord United States v. Washington, 653 F.3d 1251, 1257-58 (10th Cir. 2011) (“if a court ordinarily would consider an argument ... to be forfeited, it should only refrain from doing so ... when the alleged error is jurisdictional“).2 Subject-matter jurisdic-
tion
Bahlul cannot seriously contest the military commission‘s jurisdiction. The 2006 MCA authorizes trial by military commission of “any offense made punishable by this chapter,” including “conspiracy.”
Bahlul‘s challenge under the Judicial Power Clause of
Why, then, do my colleagues review Bahlul‘s Article III challenge de novo? As best I can tell, their answer is “because Schor says so.” See Maj. Op. 3-7; Concur. Op. 23-24. I respectfully disagree. Here is the relevant passage from Schor:
[O]ur precedents establish that
Article III, § 1 , not only preserves to litigants their interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as an inseparable element of the constitutional system of checks and balances.Article III, § 1 safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts to transfer jurisdiction to non-Article III tribunals for the purpose of emasculating institutional courts, and thereby preventing the encroachment or aggrandizement of one branch at the expense of the other. To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed byArticle III, § 2 . When theseArticle III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.
478 U.S. at 850-51, 106 S.Ct. 3245 (emphases added) (quotation marks, citations and alterations omitted). But the High Court did not, by this language, instruct courts to treat Judicial Power Clause challenges as nonforfeitable or to automatically review them de novo.3
But don‘t take my word for it. The Supreme Court has since clarified that Schor did not declare Judicial Power Clause challenges to be nonforfeitable; instead, the Court in Schor at most exercised its discretion to excuse the forfeiture. In Plaut v. Spendthrift Farm, Inc., the Government—like Bahlul—attempted to rely on Schor for the proposition that “parties cannot waive the structural principle of Article III.” Brief for United States at 27, 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (No. 931121), 1994 WL 387806. The Supreme Court expressly rejected this view:
[T]he proposition that legal defenses based upon doctrines central to the courts’ structural independence can never be waived simply does not accord
criminal law cannot be left merely to the stipulation of parties.“). The Government cannot alter our standard of review—by concession, inadvertence, poor oral advocacy or otherwise. See United States v. Delgado-Garcia, 374 F.3d 1337, 1341 (D.C. Cir. 2004) (declining to accept Government‘s concession that issue was jurisdictional and thus subject to de novo review); Nucci-Peña, 711 F.3d at 196 n. 5 (declining to accept Government‘s concession that constitutional challenge should be reviewed de novo, rather than for plain error); United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)
with our cases. Certainly one such doctrine consists of the “judicial Power” to disregard an unconstitutional statute; yet none would suggest that a litigant may never waive the defense that a statute is unconstitutional.... We held in Schor that, although a litigant had consented to bring a state-law counterclaim before an Article I tribunal, we would nonetheless choose to consider his
Plaut, 514 U.S. at 231-32, 115 S.Ct. 1447 (first emphasis added) (some citations omitted). Plaut makes plain that a party can forfeit a Judicial Power Clause argument and there is no ”Schor exception” to the rule that a “structural” constitutional challenge is forfeitable. Whether an appellate court entertains such a challenge is a matter of discretion, not an inexorable command from Schor.4
Granted, in a series of bankruptcy cases, many of our sister circuits interpreted Schor to create a rule of nonforfeitability, despite the Supreme Court‘s clarification in Plaut. See Wellness Int‘l Network, Ltd. v. Sharif, 727 F.3d 751, 767-73 (7th Cir. 2013), rev‘d, 575 U.S. —, 135 S.Ct. 1932, 191 L.Ed.2d 911 (2015); In re BP RE, L.P., 735 F.3d 279, 286-87 (5th Cir. 2013); Waldman v. Stone, 698 F.3d 910, 917-18 (6th Cir. 2012). But see In re Bellingham Ins. Agency, Inc., 702 F.3d 553, 566 (9th Cir. 2012), aff‘d on other grounds sub nom. Exec. Benefits Ins. Agency v. Arkison, — U.S. —, 134 S.Ct. 2165, 189 L.Ed.2d 83 (2014). In Kuretski v. Commissioner, this Court—relying in part on the bankruptcy cases from our sister circuits—read Schor to mean that a party “did not (and could not) ... waive his ‘structural’ claim” under the Judicial Power Clause of
In B & B Hardware, Inc. v. Hargis Indus., Inc., — U.S. —, 135 S.Ct. 1293, 191 L.Ed.2d 222 (2015), the Supreme Court considered whether the decisions of the Trademark Trial and Appeal Board—a non-Article III tribunal—were entitled to issue-preclusive effect. See id. at 1299, 1303. If issue preclusion applied, the respondent claimed that the Judicial Power Clause would be violated. See id. at 1304. The Court expressly declined to consider the claim because the respondent had not briefed it. See id.; see also id. at 1305 n. 2 (“[W]e do not decide whether such preclusion is unconstitutional because the issue is not before us.“); id. at 1304 (“To the ex-
tent
In Wellness International Network, Ltd. v. Sharif, — U.S. —, 135 S.Ct. 1932, 191 L.Ed.2d 911 (2015), the Supreme Court made its view on the forfeitability of a Judicial Power Clause challenge as plain as day. The main holding of Sharif is that a party‘s consent eliminates the
[R]espondent forfeited any Stern objection by failing to present that argument properly in the courts below. Stern vindicates
Article III , but that does not mean that Stern arguments are exempt from ordinary principles of appellate procedure.
Id., concurring op. at 1949 (Alito, J.). He, unsurprisingly, relied on B & B Hardware for this conclusion. Id. (citing B & B Hardware, 135 S.Ct. at 1304). The other five Justices in the Sharif majority necessarily agreed that “ordinary principles of appellate procedure” govern, id.: they would not have remanded the forfeiture question if the Seventh Circuit were right all along that a “structural” Judicial Power Clause challenge cannot be forfeited.5 Ac-
cordingly, Sharif not only overruled our sister circuits’ earlier bankruptcy cases, but, in my reading, it also undermined the relevant language from Kuretski. Contra Maj. Op. 4.
Notwithstanding the charge that I “misinterpret[]” Sharif, Maj. Op. 6, it is my colleagues’ reading that misses the mark. They believe Sharif reinforced Schor‘s supposed rule of nonforfeitability. To support this point, they rely on passages in Sharif that discuss the distinction between the “personal” and “structural” aspects of
To put it another way, when Sharif speaks of “waiver,” it means the waiver of rights, not the forfeiture of arguments. The question the Court addressed in Sharif is whether “consent” (sometimes referred to, interchangeably, as “waiver“) can “cure the constitutional difficulty” presented by non-Article III adjudication. 135 S.Ct. at 1943, 1945 n. 10 (quoting Schor, 478 U.S. at 851, 106 S.Ct. 3245 (emphasis added)); id., dissenting op. at 1956 (Roberts, C.J.) (same). The idea is that, when a party knowingly and voluntarily waives certain constitutional rights, no constitutional violation occurs in the first place. See id., 135 S.Ct. at 1945 n. 10; see also id., dissenting op. at 1961 (Thomas, J.) (“Although it may not author-
than hews to, this approach. If they wanted to be faithful to Sharif‘s disposition in the criminal context, they could have resolved Bahlul‘s Article III claim de novo under the “error” prong of the plain-error standard but then affirmed his conviction because the error was not “plain.” See infra p. 42.
ize a constitutional violation, consent may prevent one from occurring in the first place.“). This is true for “personal” rights, like the right to a jury, but—as Schor and Sharif make plain—it is not true for violations of the Article III Judicial Power Clause. See id., 135 S.Ct. at 1942-43; Schor, 478 U.S. at 849-51, 106 S.Ct. 3245. A party‘s consent cannot, by itself, “excuse an actual violation of Article III” because the Judicial Power Clause protects “structural” interests aliunde the narrow concerns of the parties. Sharif, 135 S.Ct. at 1945 n. 10; see also Schor, 478 U.S. at 851, 106 S.Ct. 3245 (“When these
feiture, they could not reconcile the Court‘s repeated admonitions that structural Article III challenges can, in fact, be waived. See, e.g., Sharif, 135 S.Ct. at 1947 n. 11 (“[T]he proposition that legal defenses based upon doctrines central to the courts’ structural independence can never be waived simply does not accord with our cases.” (quoting Plaut, 514 U.S. at 231, 115 S.Ct. 1447 (emphasis added) (alteration in original))); id. at 1942-43,
The Supreme Court eloquently explained the waiver-of-rights/forfeiture-of-arguments distinction in Puckett:
[The defendant‘s] argument confuses the concepts of waiver and forfeiture. Nobody contends that [the defendant‘s] counsel has waived—that is, intentionally relinquished or abandoned—[the defendant‘s] right.... The objection is rather that [the defendant] forfeited the claim of error through his counsel‘s failure to raise the argument in the District Court. This Court‘s precedents requiring that certain waivers be personal, knowing, and voluntary are thus simply irrelevant. Those holdings determine whether error occurred, but say nothing about the proper standard of review when the claim of error is not preserved.
556 U.S. at 138 (citation omitted) (second emphasis added). The Court‘s analysis makes plain an obvious point when applied here. An enemy combatant must knowingly and voluntarily consent to non-Article III adjudication before his consent can ward off a violation of the Judicial Power Clause. See Sharif, 135 S.Ct. at 1947-48. But we should not even review a Judicial Power Clause challenge if he forfeits the argument by failing to timely raise it.
To summarize, the Supreme Court has made triply clear in Plaut, B & B Hardware and Sharif that Schor did not label an Article III challenge as nonforfeitable; instead, the Schor Court exercised its discretion to excuse a forfeiture of the Judicial Power Clause challenge. This distinction—between nonforfeitability, on the one hand, and discretion to excuse forfeiture, on the other—is crucial for two reasons.
135 S.Ct. 1932, 1948 (“[A]llowing bankruptcy litigants to waive the right to Article III adjudication of Stern claims does not usurp the constitutional prerogatives of Article III courts.” (emphasis added)); id. at 1949, 135 S.Ct. 1932 (distinguishing Stern—a structural Article III precedent—on basis that “[t]he Court has never ... h[e]ld that a litigant who has the right to an Article III court may not waive that right through his consent.“).
First, in a criminal case like this one, an appellate court lacks the kind of discretion the Court exercised in Schor. As noted, appellate courts in civil cases can excuse a forfeiture in “exceptional circumstances.” Air Fla., 750 F.2d at 1085. The Supreme Court has expressly declined to limit this discretion. See Exxon Shipping, 554 U.S. at 487, 128 S.Ct. 2605. Accordingly, courts occasionally exercise their discretion in civil cases to review “structural” separation-of-powers challenges de novo, notwithstanding they were not raised below. See, e.g., Freytag, 501 U.S. at 879, 111 S.Ct. 2631; Schor, 478 U.S. at 851, 106 S.Ct. 3245; Glidden, 370 U.S. at 536-37, 82 S.Ct. 1459 (plurality); Kuretski, 755 F.3d at 936-37. But see Freytag, 501 U.S. at 892-901, 111 S.Ct. 2631 (Scalia, J., concurring) (explaining why “structural” constitutional challenges should not receive special treatment).
The rules are different, however, in criminal cases. Over the last three decades, the Supreme Court has repeatedly restricted our authority to deviate from the plain-error standard. See, e.g., United States v. Marcus, 560 U.S. 258, 262-66, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010); Puckett, 556 U.S. at 134-43, 129 S.Ct. 1423; Cotton, 535 U.S. at 629-34, 122 S.Ct. 1781; Johnson, 520 U.S. at 466-70, 117 S.Ct. 1544; Olano, 507 U.S. at 731-41, 113 S.Ct. 1770; Young, 470 U.S. at 14-16 & nn. 12, 14, 105 S.Ct. 1038; Frady, 456 U.S. at 163 & nn. 13-14, 102 S.Ct. 1584. In criminal cases, the plain-error standard operates as a “limitation on appellate-court authority.” Puckett, 556 U.S. at 134, 129 S.Ct. 1423; see also United States v. Farrell, 672 F.3d 27, 36 (1st Cir. 2012). It “strictly circumscribe[s]” our ability to remedy forfeited
Courts apply plain-error review in criminal cases notwithstanding “the seriousness of the error claimed.” Johnson, 520 U.S. at 466, 117 S.Ct. 1544; accord United States v. Padilla, 415 F.3d 211, 220 (1st Cir. 2005) (en banc) (“forfeited errors, even if structural, are subject to [plain-error review]“). Notably, when the Supreme Court was presented with a “structural”
The distinction between criminal and civil cases may seem counterintuitive because, ordinarily, the plain-error standard places a criminal defendant in a better position than a civil litigant. See Bahlul, 767 F.3d at 9 (plain-error review “mitigate[s] the sometimes harsh results of the forfeiture rule in criminal cases“). But this intuition focuses myopically on one side of the plain-error “balance” to the exclusion of the other. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. Plain-error review gives the contemporaneous-objection rule its “necessary bite.” Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 HARV. L. REV. 1128, 1135 (1986); see also id. (“A requirement that a particular issue be raised in a particular fashion or at a particular time would hardly be effective if failures to comply were never punished.“). As the Supreme Court has cautioned, “a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal” to the rationale of the contemporaneous-objection rule. Puckett, 556 U.S. at 134, 129 S.Ct. 1423 (emphasis added). That rationale is “especially compelling” in criminal cases. Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940); see also Di Bella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) (“undue litigiousness and leaden-footed administration of justice [are] particularly damaging to the conduct of criminal cases“). Society has an especially strong interest in the finality of criminal proceedings because “[w]ithout [it], the criminal law is deprived
Second, even if we could bypass the plain-error standard and review Bahlul‘s
Most notably, my colleagues’ application of de novo review leads them to invalidate a provision of the 2006 MCA—a duly enacted statute produced by a coequal branch. See Rostker, 453 U.S. at 64, 101 S.Ct. 2646 (“[W]e must have due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.” (quotation marks omitted)). Examining the constitutionality of a statute is “legitimate only in the last resort, and as a necessity.” Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892); see also Pearson v. Callahan, 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (courts should not “pass on questions of constitutionality unless such adjudication is unavoidable” (ellipsis omitted)); Lyng v. Nw. Indian Cemetery Protective Ass‘n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.“); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (Rehnquist, J., concurring in judgment) (“Particularly in an area of constitutional law such as that of ‘Art. III Courts,’ with its frequently arcane distinctions and confusing precedents, rigorous adherence to the principle that this Court should decide no more of a constitutional question than is absolutely necessary accords with both our decided cases and with sound judicial policy.“). Restraint is particularly necessary here because our decision affects sensitive matters of national security, the consequences of which we have neither the information nor the perspicacity to predict. See Dep‘t of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (“courts traditionally have been reluctant to intrude ... in military and national security affairs“); Latif v. Obama, 677 F.3d 1175, 1182 (D.C. Cir. 2012) (“Both the Constitution and common sense support judicial modesty” in this area because “the judiciary has the least competence and the smallest constitutional footprint.“); Humanitarian Law Project, 561 U.S. at 34, 130 S.Ct. 2705 (“[N]ational security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess.“).
Further, excusing Bahlul‘s forfeiture would not serve the interests of justice because he is concededly—and unapologetically—guilty of the charged offenses. Before the military commission, Bahlul candidly admitted to being a member of al Qaeda and engaging in all of the conduct attributed to him. See App. 190-94. Although he took one exception to the charge that he wore an explosive belt in order to
Finally, nothing prevented Bahlul from raising his constitutional challenges before the military commission. See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 571 F.3d 69, 76 (D.C.Cir.2009) (declining to forgive forfeiture because party “offer[ed] no justification for its delay“). Bahlul chose to “boycott” the proceedings in the hope it would “make the Muslims rise for [al Qaeda‘s] cause.” App. 156, 162. By rejecting the assistance of counsel and voluntarily absenting himself from the proceedings, forfeiture was “one of the perils [Bahlul] assume[d].” United States v. Vonn, 535 U.S. 55, 73 n. 10, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Bahlul had every opportunity to raise his challenges and he must accept the consequences of his deliberate failure to do so. See Puckett, 556 U.S. at 136, 129 S.Ct. 1423.
Nor is this a case where applying the ordinary rules of forfeiture would forever prevent de novo review of the constitutionality of the challenged provision. This concern may have been the principal motivation behind Schor. The law at issue in Schor permitted the CFTC to hear state-law counterclaims in reparations proceedings. 478 U.S. at 837, 106 S.Ct. 3245. But the CFTC‘s jurisdiction was non-exclusive: parties remained free to bring reparations claims in federal court. Id. at 836, 106 S.Ct. 3245. Thus, parties who chose to litigate before the CFTC arguably waived their right to complain about the CFTC‘s adjudication of state-law counterclaims. The same was true for the parties who raised the counterclaims—which were permissive, not compulsory, under the relevant law. Id. at 837, 106 S.Ct. 3245. As a result, the Supreme Court faced a dilemma. If the ordinary rules of waiver applied, no court could ever determine whether the CFTC‘s adjudication of state-law counterclaims violated the Judicial Power Clause of
In sum, I believe my colleagues err by parting ways with the en banc court and reviewing Bahlul‘s
Applying the plain-error standard of review, I would easily reject Bahlul‘s challenges to his conspiracy conviction. The plain-error standard is “difficult” to satisfy, “as it should be.” United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The forfeited error must be “so obvious” that “the trial judge and prosecutor were derelict in countenancing it.” Bolla, 346 F.3d at 1153. Here, the Congress‘s decision to authorize the trial of conspiracy by military commission did not plainly transcend
II. THE CONSTITUTIONAL CHALLENGES
Bahlul argues that (i) the Congress—in codifying conspiracy to commit war crimes as an offense triable by military commission—exceeded its
As detailed below, the Congress acted within its
[T]he detention and trial of petitioner[]—ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger—are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution. . . .
Ex parte Quirin, 317 U.S. 1, 25, 63 S.Ct. 2, 87 L.Ed. 3 (1942) (emphasis added).10
A. ARTICLE I
Bahlul begins with an uncontroversial premise: “law-of-war military commissions” can try only those “offenses against the law of war.” Pet‘r‘s Br. 12 (quoting Bahlul, 767 F.3d at 7). But he then embroiders that premise with needlework that produces naught but knots. First, he insists that the Congress‘s power to codify a law-of-war offense derives exclusively from the Define and Punish Clause,
Both of Bahlul‘s embroidered premises are wrong. Even under the Define and Punish Clause alone, the Congress has the constitutional authority to codify conspiracy to commit war crimes by military commission. The international community does recognize that Bahlul violated “the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience,” Quirin, 317 U.S. at 35, 63 S.Ct. 2, and the Congress has done nothing more than provide for “the limits or precise meaning” of those principles in authorizing the trial and sentencing by military commission for the violation thereof. 11 U.S. Op. Atty. Gen. 297, 299 (1865) (then-Attorney General James Speed‘s review of Lincoln conspirators’ trial).
Bahlul‘s other embroidered premise fares no better. The Congress does not derive its power to enumerate war crimes triable by military commission solely from the Define and Punish Clause. As the
1. Define and Punish Clause
The Define and Punish Clause declares that “[t]he Congress shall have Power . . . [t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”
At the Constitutional Convention, the debate over the Define and Punish Clause focused on whether the Congress should be given the power to do more than merely punish violations of the law of nations. An early draft of the Clause recited that the Congress could “define & punish piracies and felonies on the high seas” but could only “punish offenses agst. the law of nations.” Charles D. Siegal, Deference and Its Dangers: Congress’ Power to “Define . . . Offenses Against the Law of Nations”, 21 VAND. J. TRANSNAT‘L L. 865, 876 (1988) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 614 (Farrand ed. 1937) (Madison‘s notes) (emphasis added)). Gouverneur Morris, a Pennsylvania delegate to the Constitutional Convention, “moved to strike out ‘punish’ before the words ‘offenses agst. the law of nations’ ” so that they would be “definable as well as punishable, by virtue of the preceding member of the sentence.” Id. (emphasis in original). James Wilson, another Pennsylvania delegate, objected, arguing that “[t]o pretend to define the law of nations” would give the drafters a “look of arrogance” and “make us ridiculous.” Id. (emphasis in original). In rejoinder, Morris explained that passive reliance on the international community was unworkable because “the law of nations [is] often too vague and deficient to be a rule.” Id. (alterations omitted); see also THE FEDERALIST NO. 42, at 266 (Madison) (explaining that “define” power was necessary to secure “certainty and uniformity“). Morris‘s approach carried the day, establishing that the Congress was not reflexively to follow other nations’ lead in formulating offenses but instead to contribute to their formulation. See 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, 27 (2013) (“Morris‘s concern suggested that Congress would play a valuable role by not merely defining the law of nations in a mechanical fashion, but refining that occasionally turgid and murky stream of disparate sources.“); cf. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 316 (Morris) (“define . . . was said by others to be applicable to the creating of offences“).
The Clause‘s history and text suggest two principles helpful to our interpretive task. The first is that international law derives from “a myriad of sources” and is “vast and always changing.” Margulies, supra, at 24; see also Bahlul, 767 F.3d at54 (Brown, J., concurring/dissenting). Justice Joseph Story, in 1820, recognized the varying nature of international law, observing that “[o]ffences . . . against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognised by the common consent of nations,” and therefore the Congress was given the “power to define.” United States v. Smith, 18 U.S. 153, 159, 5 Wheat. 153, 5 L.Ed. 57 (1820). The observation has stood the test of time. As declared at the Nuremberg International Military Tribunal that tried the World War II war criminals:
[I]nternational 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 practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world.
1 INT‘L MILITARY TRIBUNAL (IMT), TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL: NUREMBERG 221 (1947).
The second principle is that “[t]he judiciary must give Congress extraordinary deference when it acts under its Define and Punish Clause powers.” Bahlul, 767 F.3d at 59 (Brown, J., concurring/dissenting). The Framers recognized that “[d]efining and enforcing the United States’ obligations under international law require the making of extremely sensitive policy decisions, decisions which will inevitably color our relationships with other nations.” Finzer v. Barry, 798 F.2d 1450, 1458 (D.C. Cir. 1986) (emphasis added). “[S]uch decisions are delicate, complex, and involve large elements of prophecy. . . . They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.” Id. at 1458-59 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948)). Indeed, “[j]udicial deference to such congressional definition is but a corollary to the grant to Congress of any
The Supreme Court has remained faithful to these principles in the few instances in which it has examined the prosecution of war crimes by military commission. The first instance was Quirin. There, the Court had no difficulty concluding that the offenses charged against the Nazi saboteurs—espionage and sabotage—had “generally been accepted” as punishable by military commission under international law. Quirin, 317 U.S. at 31-36, 63 S.Ct. 2. The offenses with which the saboteurs were charged, according to the Quirin Court, resulted from conduct “plainly” recognized as violative of the law of war. Id. at 46, 63 S.Ct. 2.
But the precedent my colleagues cannot reconcile with their Define and Punish Clause holding is Application of Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946). At the time Japanese Commander Yamashita assumed command, General MacArthur‘s troops were waging their assault on, and ultimate liberation of, the Philippines. Id. at 31-32, 66 S.Ct. 340 (Murphy, J., dissenting). Although Allied victory was imminent, Yamashita‘s army troops and naval forces “exterminate[d] a large part [more than 25,000] of the civilian population of Batangas Province.” Id. at 14, 66 S.Ct. 340 (majority op.). While the crimes committed by Yamashita‘s soldiers
In so doing, the Court framed the question as follows:
[W]hether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.
Yamashita, 327 U.S. at 14-15, 66 S.Ct. 340. The Court looked to four international-law sources for an answer. Although none directly addressed whether a commanding officer‘s failure to affirmatively prevent his troops from committing war crimes was itself a war crime, the Fourth Hague Convention of 1907 established that armed forces could be considered lawful belligerents only if commanded by an individual “responsible for his subordinates.” Id. at 15, 66 S.Ct. 340 (quoting 36 Stat. 2295). Article 43 of the Annex to the Fourth Hague convention required a commander occupying enemy territory to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Id. at 16, 66 S.Ct. 340 (quoting 36 Stat. 2306) (emphases added).11
Notwithstanding the absence of international authority outlawing a commander‘s failure to affirmatively prevent those under his command from committing war crimes, the Court was not deterred, finding it “evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent.” 327 U.S. at 15, 66 S.Ct. 340 (emphasis added). That “purpose . . . would largely be defeated if the commander . . . could with impunity neglect to take reasonable measures for their protection.” Id. “Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.” Id. (emphasis added).
The holding was attacked—molto agitato—by the two dissenting Justices, see id. at 35, 66 S.Ct. 340 (Murphy, J., dissenting) (noting that “[i]nternational law ma[de] no attempt to define the duties of a command-
er
Mindful of the two principles discussed above—the inherently fluid nature of international law and the deference owed to the Congress‘s power to define offenses against the law of nations—we should examine whether the international community permits Bahlul to be tried by military commission rather than requiring that the charge against him, as defined by the Congress, matches an offense expressly recognized by the law of nations as a war crime.
Bahlul was convicted of “conspiracy to commit war crimes.” Bahlul, 767 F.3d at 5.13 The 2006 MCA defines conspiracy as including any enemy combatant “who conspires to commit one or more” law-of-war offenses and “who knowingly does any overt act” in furtherance thereof.
In civil-law countries, conspiracy is instead viewed as a type of vicarious liability requiring proof of a completed offense. See Margulies, supra, at 84. Inchoate conspiracy has been internationally recognized, however, in connection with certain war crimes. See 1 IMT, supra, at 224-26 (“common plan” to wage aggressive war); 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 of the International Criminal Tribunal for Rwanda, art. 2 (1994) (same); Convention on the Prevention and Punishment of the Crime of Genocide, art. 3 (1948) (same). Additionally, international law recognizes “joint criminal enterprise” (JCE). See Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment, ¶ 220 (Int‘l Crim. Trib. for the Former Yugoslavia July 15, 1999). JCE has three essential elements: “a plurality of persons participating in the criminal plan,” “the existence of a common purpose which amounts to or involves the
At one point, my colleagues suggest that the conspiracy offense set out in the 2006 MCA is inconsistent (as opposed to not recognized in haec verba) with international law. They note that “[t]he International Military Tribunal at Nuremberg considered and rejected conspiracy to commit war crimes as an international law of war offense.” Maj. Op. 15. The Nuremberg Tribunal, however, did recognize one inchoate conspiracy offense: “common plan” to wage aggressive war. 1 IMT, supra, at 224-26. The Congress is aware of this history and could have legitimately concluded that the international community would agree that the September 11, 2001 attacks are sufficiently abhorrent to impose inchoate-conspiracy liability. Importantly, the “jurisdiction” of the military commission has traditionally been “adapted in each instance to the need that called it forth,” Madsen v. Kinsella, 343 U.S. 341, 347-48, 72 S.Ct. 699, 96 L.Ed. 988 (1952),14 and international terrorism is “the global security challenge of the 21st Century.” Bahlul, 767 F.3d at 61 (Brown, J., concurring/dissenting). Furthermore, international law has developed since the Nuremberg trials of seventy years ago. International tribunals now prosecute JCE, which “functions in ways virtually identical to” inchoate conspiracy. Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L.REV. 75, 119 (2005). Thus, the hesitation of certain Allies at Nuremberg—that “overbroad application of the conspiracy principle may drag innocent people into the prosecution‘s net,” TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 553 (1992)—appears to have been removed by the international community. Indeed, JCE allows the prosecution as war criminals of those who join together and participate in a criminal plan, which plan‘s purpose “amounts to” the commission of a crime. Bigi, supra, at 56; see also Tadic, supra, at ¶ 199. Bahlul joined with other al Qaeda members and participated15 in
Discernible in this brief discussion is a common animating principle that, notwithstanding the differences in descriptive labels or elements, individuals who join together to further the commission of a war crime violate the law of war. Granted, the Congress did not include proof of a completed war crime as an element of the conspiracy offense included in the 2006 MCA. My colleagues characterize this omission as the creation of a new, purely “domestic” offense, as if it were made out of whole cloth. Maj. Op. 10. In my view, the Congress has taken a preexisting international law-of-war offense—conspiracy to commit war crimes—and eliminated one element. This it is constitutionally authorized to do within its “power to define” that Justice Story wrote about almost 200 years ago. Smith, 18 U.S. at 153, 159; see also Bahlul, 767 F.3d at 57 (Brown, J., concurring/dissenting).
Nor does the Define and Punish Clause require the Congress to wait for the international community to catch up. The Yamashita Court did not play “Mother, may I” with established international law. See 327 U.S. at 15-16, 66 S.Ct. 340. Instead, it used what it viewed as the international law of war‘s “presuppos[ition]” and “purpose” in order to uphold Yamashita‘s conviction of “failure to prevent” war crimes, which failure “result[ed] in” war crimes it was “the purpose of the law of war to prevent.” Id. at 15-16 & n. 3, 66 S.Ct. 340. Moreover, it upheld Yamashita‘s war crimes convictions for omissions to act; even more cognizable as war crimes, then, are Bahlul‘s commissions. See supra pp. 48-49 n. 15. And today, in our post-Erie world, we recognize that there is no “transcendental body of law outside of any particular State.” Erie R. Co. v. Tompkins, 304 U.S. 64, 79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Law is created, not discovered, and it changes based on the actions of individual sovereigns. As one commentator puts it:
[I]nternational law has grown more fluid and responsive to shifts in international consensus. The United States’ influence on international law has changed as well: the twentieth century saw the nation develop into a superpower, one that, when it trims its sails, can cause the winds of international law to blow in a new direction.
Note, The Offences Clause After Sosa v. Alvarez-Machain, 118 HARV. L.REV. 2378, 2390 (2005); see also Stewart Jay, The Status of the Law of Nations in Early American Law, 42 VAND. L.REV. 819 (1989).
My colleagues’ narrow view of the Congress‘s authority under the Define and Punish Clause, requiring that a law-of-war offense be already recognized by the international community on an element-by-element basis, follows, they believe, from Quirin and Hamdan. In my view, these two cases did not set the outer limits of the Congress‘s authority because neither involved an exercise of the Congress‘s power to “define” the law of nations. The military commissions in Hamdan and Quirin operated under
In Hamdan, however, five Justices emphasized that their task would have been considerably easier had the Congress affirmatively defined conspiracy as an offense against the law of war. See 548 U.S. at 601-02, 126 S.Ct. 2749 (plurality) (noting Congress had not “positively identified ‘conspiracy’ as a war crime“); id. at 612, 126 S.Ct. 2749 (noting “the absence of specific congressional authorization“); id. at 595, 126 S.Ct. 2749 (majority op.) (same); id. at 636, 126 S.Ct. 2749 (Breyer, J., concurring) (“Nothing prevents the President from returning to Congress to seek the authority he believes necessary.“). As Justice Kennedy put it:
I . . . see no need to address the validity of the conspiracy charge. . . . Congress may choose to provide further guidance in this area. Congress, not the Court, is the branch in the better position to undertake the “sensitive task of establishing a principle not inconsistent with the national interest or with international justice.”
Id. at 655, 126 S.Ct. 2749 (Kennedy, J., concurring in part) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)).
Heeding this call, the Congress provided such guidance by enacting the 2006 MCA, which expressly enumerates conspiracy as a law-of-war offense triable by military commission. See
Bahlul‘s conspiracy conviction thus stands on firmer constitutional footing than Hamdan‘s, Quirin‘s or even Yamashita‘s convictions. The Congress has in fact exercised its
Accordingly, the Congress‘s decision to define conspiracy to commit war crimes as an offense against the law of war triable by military commission is consistent with international law—even if not a perfect match. Add to that the elevated level of deference we give the Congress in exercising its
2. Necessary and Proper Clause
Next, the Necessary and Proper Clause augments the Congress‘s already ample Define and Punish Clause authority to codify conspiracy as a law-of-war offense triable by military commission. The Supreme Court has made plain that, “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute,” courts “look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” United States v. Comstock, 560 U.S. 126, 134, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010); see also Gonzales v. Raich, 545 U.S. 1, 22, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (statute falls within Necessary and Proper Clause if “Congress had a rational basis” for concluding statute implements another enumerated
In Comstock, the Supreme Court held that the Necessary and Proper
First, as Comstock emphasized, the Congress‘s power under the Necessary and Proper Clause is broad. See id. at 133, 130 S.Ct. 1949; see also Armstrong v. Exceptional Child Center, Inc., — U.S. —, 135 S.Ct. 1378, 1383, 191 L.Ed.2d 471 (2015) (Necessary and Proper Clause “vests Congress with broad discretion over the manner of implementing its enumerated powers“). Indeed, in M‘Culloch, “Chief Justice Marshall emphasized that the word ‘necessary’ does not mean ‘absolutely necessary.’ ” Comstock, 560 U.S. at 134, 130 S.Ct. 1949 (quoting M‘Culloch, 17 U.S. at 413-15 (emphasis omitted)). Rather, he wrote:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
M‘Culloch, 17 U.S. at 421. For this reason, courts deciding whether the Necessary and Proper Clause supports a piece of legislation ask only “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” Comstock, 560 U.S. at 134, 130 S.Ct. 1949; see also Sabri v. United States, 541 U.S. 600, 605, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (using “means-ends rationality” to describe necessary relationship). Moreover, the “choice of means” lies “primarily” with “the judgment of Congress” and “the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted, and the end to be attained, are matters for congressional determination alone.” Burroughs v. United States, 290 U.S. 534, 547-48, 54 S.Ct. 287, 78 L.Ed. 484 (1934).
Second, the Congress, through the 2006 MCA, legislated in an area that is exclusively federal, not simply one with a “long history of federal involvement.” Comstock, 560 U.S. at 149, 130 S.Ct. 1949. The Supreme Court has long held that “the government of the United States has been vested exclusively with the power of representing the nation in all its intercourse with foreign countries,” Arjona, 120 U.S. at 483, 7 S.Ct. 628, and that states are “expressly prohibited from entering into any ‘treaty, alliance, or confederation.’ ” Id. (quoting
Third, the Congress has indisputably sound reasons for codifying conspiracy as a war crime triable by military commission. As the Supreme Court has explained,
Fourth, for the reasons discussed in the second point, supra, the challenged provision does not infringe on any state interest.
Fifth, the link between the Congress‘s decision to authorize trial of conspiracy to commit war crimes by military commission and its undisputed power to authorize trial of other war crimes by military commission is not attenuated. Indeed, under the challenged provision, an enemy combatant tried by military commission can be convicted of conspiracy only if the Government proves that he agreed to commit, and took acts in furtherance of committing, a war crime. There is no question that the object offenses underlying Bahlul‘s conspiracy conviction—which the Government proved or Bahlul conceded—violated the international law of war. See, e.g., Findings Worksheet 2 (Bahlul convicted of conspiring to “murder . . . protected persons“); Rome Statute of the International Criminal Court, art. 8, July 17, 1998, 2187 U.N.T.S. 90 (murder of civilians constitutes international war crime). Nor is the conspiracy provision of the 2006 MCA sweeping in scope.
Bahlul makes no attempt to distinguish Comstock, arguing instead that United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955), forecloses application of the Necessary and Proper Clause. But Toth, a case involving the court-martial trial of an Army veteran who had been honorably discharged, id. at 13, 76 S.Ct. 1, is beyond inapposite. In Toth, the Supreme Court rejected an attempt to use the Necessary and Proper Clause to supplement the Congress‘s power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” Id. at 14, 76 S.Ct. 1 (quoting
Neither of these concerns exists here. There is no risk that a countervailing constitutional right supersedes the
To the extent there is any doubt that the Congress has the power to “define” conspiracy as a war crime and “punish” it by military commission, the Necessary and Proper Clause is more than sufficient to remove it.
3. Broader War Powers
“[O]ut of seventeen specific paragraphs of congressional power, eight of them are devoted in whole or in part to specification of powers connected with warfare.” Johnson v. Eisentrager, 339 U.S. 763, 788, 70 S.Ct. 936, 94 L.Ed. 1255 (1950). Specifically, the Congress has the power:
- “[T]o . . . provide for the common Defence and general Welfare of the United States,”
U.S. CONST. art. I, § 8, cl. 1 ; - “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,”
id. cl. 10 ; - “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,”
id. cl. 11 ; - “To raise and support Armies,”
id. cl. 12 ; - “To provide and maintain a Navy,”
id. cl. 13 ; - “To make Rules for the Government and Regulation of the land and naval Forces,”
id. cl. 14 ; - “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,”
id. cl. 15 ; and - “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress,”
id. cl. 16 .
a. Supreme Court Precedent
The Supreme Court has recognized the breadth of the Congress‘s war powers, both individually and in combination. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 65, 101 S.Ct. 2646 (1981) (“The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.“); Wayte v. United States, 470 U.S. 598, 612, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (“Unless a society has the capability and will to defend itself from the aggressions of others, constitutional protections of any sort have little meaning. Recognizing this fact, the Framers listed ‘provid[ing] for the common defence’ [in the Preamble] as a motivating purpose for the Constitution . . . .“). The Congress‘s war powers include the creation and use of military commissions. “Since our nation‘s earliest days, such commissions,” also called “our commonlaw war courts,” “have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.” Madsen, 343 U.S. at 346-47, 72 S.Ct. 699. Historically, “their procedure” and “their jurisdiction” have been “adapted in each instance to the need that called [them] forth.” Id. at 347-48, 72 S.Ct. 699 (citing Yamashita, 327 U.S. at 18-23, 66 S.Ct. 340 (emphasis added)).
The Supreme Court has never expressly held that the Congress‘s power to provide for law-of-war military commissions stems from the Define and Punish Clause alone. Instead, its limited jurisprudence indicates that the combined effect of the Congress‘s war powers allows for military-commission trials as their need arises. A century before Madsen, four Justices opined that “the power of Congress . . . to authorize trials for crimes against the security and safety of the national forces, may be derived from its constitutional authority to raise and support armies and to declare war.” Ex parte Milligan, 71 U.S. 2, 142, 4 Wall. 2, 18 L.Ed. 281 (1866) (Chase, C.J., concurring in judgment).
Moreover, nothing in Quirin suggests that the Supreme Court intended to limit the Congress‘s war powers to the Define and Punish Clause in setting the jurisdiction of military commissions. In fact, the Quirin Court took pains to emphasize that “[w]e have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.” 317 U.S. at 45-46, 63 S.Ct. 2. Quirin held only, on the facts of that case, that the Congress‘s power under the Define and Punish Clause provided sufficient authority to support the charges made against the Nazi saboteurs. See id. at 46, 63 S.Ct. 2 (“We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.” (emphasis added)). Quirin did not purport to read out the Congress‘s other war powers; in fact, it expressly recognized and listed them. See id. at 26, 63 S.Ct. 2. The Quirin Court also observed, consistent with Chief Justice Chase‘s words nearly a century earlier, Milligan, 71 U.S. at 142 (Chase, C.J., concurring in judgment), that “[a]n important incident to the conduct of war is the adoption of measures by the military command . . . 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, 317 U.S. at 28-29, 63 S.Ct. 2 (emphasis added).
The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war. That sanction is without qualification as to the exercise of this authority so long as a state of war exists—from its declaration until peace is proclaimed. The war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has recognized, the evils which the military operations have produced.
Id. at 11-12, 66 S.Ct. 340 (emphases added) (citations omitted); see also Toth, 350 U.S. at 13-14 & n. 4, 76 S.Ct. 1 (describing Yamashita as holding about Congress‘s war powers); Howard S. Fredman, Comment, The Offenses Clause: Congress’ International Penal Power, 8 COLUM. J. TRANSNAT‘L L. 279, 303 (1969) (Yamashita “put the military prosecution of war criminals squarely within the war powers of Congress“).
Yamashita‘s words are not mere rhetoric. To determine whether Yamashita had committed a war crime triable by military commission, the Supreme Court looked not only to international sources but also to the practice of “our own military tribunals” to conclude that Yamashita‘s dereliction could be “penalized” as a violation of the law of war. Yamashita, 327 U.S. at 16, 66 S.Ct. 340 (emphases added). In other words, the Yamashita Court cited domestic law to supplement, not merely “limit[],” the law of war. Cf. Maj. Op. 8. Justice Murphy, in dissent, likewise examined whether “the laws of war heretofore recognized by this nation . . . impute[d] responsibility to a fallen commander for excesses committed by his disorganized troops while under attack.” Yamashita, 327 U.S. at 37, 66 S.Ct. 340 (Murphy, J., dissenting) (emphasis added). Thus, both the Yamashita majority and dissent agreed that, in the absence of international agreement that an offense constituted a violation of the law of war, “the principal offenses under the laws of war recognized by the United States” could also constitute cognizable war crimes triable by military tribunal. Id. (emphasis added).
The shift from Quirin‘s reliance on the Define and Punish Clause to Yamashita‘s recognition that military-commission jurisdiction of law-of-war offenses—including law-of-war offenses denominated as such by the Congress—derives from the broader war powers occurred in just four years, from 1942 to 1946. And it was that shift that led, six years later, to the Supreme Court‘s conclusion that the “jurisdiction” of military commissions had traditionally been, and should be, “adapted in each instance to the need that called it forth.” Madsen, 343 U.S. at 347-48, 72 S.Ct. 699 (citing Yamashita, 327 U.S. at 18-23, 66S.Ct. 340). There can be no doubt that the war on terror, begun in response to the September 11, 2001 attacks, constitutes the next “need” to which the jurisdiction of law-of-war military tribunals must adapt. Id. Recognizing the adaptive nature of the Congress‘s war powers, the Supreme Court has, in a variety of contexts, referred to the broad war powers of both political branches in conducting this ever-evolving war.19
I believe my colleagues have incautiously interfered with the reasoned decisions of the political branches based solely on Quirin, a case in which the Supreme Court affirmatively failed to draw the line they today draw. See 317 U.S. at 45-46, 63 S.Ct. 2. Because they apparently see Quirin as the alpha and omega of the Congress‘s
b. Winthrop‘s Treatise
As discussed, neither the plain text of the Congress‘s
Notwithstanding his reference to the “Law of War” as “intended [to refer to] that branch of International Law
c. Historical Practice
My colleagues note that our nation lacks “a long-standing historical practice” of conspiracy trial and conviction by military commission, dismissing it as “thin and equivocal at best.” Maj. Op. 11. There is no dispute that the “military commission was born of military necessity.” Hamdan, 548 U.S. at 590, 126 S.Ct. 2749. Fortuitously, military necessity has occurred only sporadically since the creation of the military commission. But what history exists demonstrates that, each time military necessity has resulted in subjecting war criminals to military court jurisdiction, conspiracy has been among the charges tried.
The majority takes issue with the example of the Lincoln conspirators, see WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 144 (1998) (“Edwin Stanton personally directed
My colleagues respond by describing the military commission that tried the Lincoln conspirators as “a mixed martial law and law of war military commission.” Maj. Op. 12. Its description, however, does not withstand scrutiny. True, at the time of the Lincoln conspirators’ trial, Washington, D.C., was under limited martial law. Nevertheless, the civilian courts remained open and operational. 11 U.S. Op. Atty. Gen. at 297 (“Martial law had been declared in the District of Columbia, but the civil courts were open and held their regular sessions, and transacted business as in times of peace.“). But because the military cannot exercise martial-law jurisdiction unless civilian courts are closed, Milligan, 71 U.S. at 127, the Lincoln conspirators’ military court necessarily was purely a military commission with law-of-war (including conspiracy) jurisdiction. See also Hamdan, 548 U.S. at 597, 126 S.Ct. 2749 (plurality) (noting that military courts have at times “substituted for civilian courts at times and in places where martial law has been declared” (emphasis added)).21 My colleagues, then,
My colleagues’ attempt to distinguish Bahlul from the Nazi saboteurs in Quirin fares no better. Quirin marked the first time in our nation‘s history that the Supreme Court addressed the jurisdiction of a law-of-war military commission. See Haridimos V. Thravalos, History, Hamdan, and Happenstance: “Conspiracy by Two or More to Violate the Laws of War by Destroying Life or Property in Aid of the Enemy“, 3 HARV. NAT‘L SEC. J. 223, 277 (2012) (referring to Quirin as “the first time in civil litigation” that “the Court explicitly recognized the existence of law-of-war jurisdiction enforceable through criminal proceedings conducted by pure law-of-war military commissions, a source of jurisdiction that had long been recognized by the practice of our own military authorities” (quotation marks omitted)). Before Quirin, the Executive Branch had provided most of the legal authority prescribing offenses cognizable as law-of-war offenses. See id. at 240-41. Although the Supreme Court did not reach the conspiracy charge in Quirin, the petitioners’ conspiracy convictions secured the imprimatur of President Roosevelt. Because the President heads “a coequal branch of government” and “take[s] the same oath we do to uphold the Constitution of the United States,” his judgment is entitled to deference. Rostker, 453 U.S. at 64, 101 S.Ct. 2646; see also United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (“In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.“).
My colleagues also distinguish the conspiracy charges in Colepaugh v. Looney, 235 F.2d 429 (10th Cir.1956). See Maj. Op. 12-13. The Colepaugh petitioners, described as the “1944 Nazi Saboteurs,” were charged with nearly identical offenses to those of the Quirin petitioners, including conspiracy. See Colepaugh, 235 F.2d at 431; Thravalos, supra, at 241. As with the Quirin saboteurs, the Colepaugh petitioners’ convictions arrived at the court with the Executive Branch‘s full sanction. In fact, their convictions were deemed lawful by (1) a special Board of Review in the Office of the Judge Advocate General of the Army, (2) the Judge Advocate General himself and (3) President Harry Truman, who “personally approved” their convictions. Thravalos, supra, at 241-42. The Tenth Circuit in Colepaugh affirmed “the charges and specifications before us.” 235 F.2d at 432 (emphasis added). My colleagues read Colepaugh as affirming only “the law of war acts of belligerency,” and
Regardless whether the courts were open, the conspirators’ offense “transgressed the laws of war” and, thus, “the proper tribunal for the trial of those engaged in it was a military one.” Ex parte Mudd, 17 F. Cas. 954, 954 (S.D.Fla.1868); see also id. (describing “charge on which” Lincoln conspirators were convicted as “conspiracy to commit the military crime which one of their number did commit and some of them more or less” participated in). The district court dismissed the petition, Milligan notwithstanding. See id. (“I do not think that ex parte Milligan is a case in point here.“).
Rather than meet this to me robust history, my colleagues instead take issue with the Government‘s (admittedly) paltry submission. See Maj. Op. 10-13. But we are “called upon to judge the constitutionality of an Act of Congress-‘the gravest and most delicate duty that this Court is called upon to perform,‘” Rostker, 453 U.S. at 64, 101 S.Ct. 2646 (quoting Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (Holmes, J.)), and I, accordingly, take issue with-and indeed reject-my colleagues’ languid dismissal of the Government‘s submission without more.
In sum, I would hold that Bahlul has not carried his burden of establishing “clear[ly]” or otherwise that his military trial and conviction are unconstitutional. Quirin, 317 U.S. at 25, 63 S.Ct. 2. The Congress has ample authority under the
Before moving to Article III, one final point is in order. Both of my colleagues contend that, unless we stringently police the Congress‘s Article I powers, the Government will possess “virtually unlimited authority” to try enemy combatants by military commission. Concur. Op. 26; see also Maj. Op. 16-17. Yet, when it comes to issues of national security and foreign affairs, abstention-not aggressive policing-has always been our watchword. See Egan, 484 U.S. at 530, 108 S.Ct. 818; Latif, 677 F.3d at 1182. In addition, several limitations on military commissions remain, including the other jurisdictional requirements identified by Winthrop, see Hamdan, 548 U.S. at 597-98, 126 S.Ct. 2749 (plurality) (citing WINTHROP, supra, at 836-39); the Bill of Rights (for U.S. citizens); and-at the very least-the existence of an ongoing war, see Yamashita, 327 U.S. at 11-13, 66 S.Ct. 340. This last requirement should not be minimized. We would be wise to remember that, in a democracy like ours, not every question calls for a judicial answer. See Mo., K. & T. Ry. Co. of Tex. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 48 L.Ed. 971 (1904) (“[I]t must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.“); Al-Bihani v. Obama, 619 F.3d 1, 11-12 (D.C.Cir.2010) (Kavanaugh,
B. ARTICLE III
The heart of Bahlul‘s appeal is his claim that the Congress violated Article III when it made conspiracy triable by military commission. In my view, Bahlul invokes two separate provisions of Article III: the
1. Judicial Power Clause
The
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....
Despite this analytic simplicity, however, “the literal command of Art. III ... must be interpreted in light of the historical context in which the Constitution was written, and of the structural imperatives of the Constitution as a whole.” N. Pipeline, 458 U.S. at 64, 102 S.Ct. 2858 (plurality); see also id. at 94, 102 S.Ct. 2858 (White, J., dissenting) (“[A]t this point in the history of constitutional law the [Article III] question can no longer be answered by looking only to the constitutional text.“). The Supreme Court has recognized several historical
The military commission is one such exception. See Eisentrager, 339 U.S. at 785-90, 70 S.Ct. 936; Quirin, 317 U.S. at 39-41, 63 S.Ct. 2; Ex parte Vallandigham, 68 U.S. 243, 251-53, 1 Wall. 243, 17 L.Ed. 589 (1863). Like courts martial and occupational courts, the constitutionality of the law-of-war military commission is “well-established.” Eisentrager, 339 U.S. at 786, 70 S.Ct. 936. Military tribunals predate the ratification of our Constitution and were used-without constitutional incident-during the Revolutionary, Mexican-American and Civil Wars. See Madsen, 343 U.S. at 346 & nn. 8-9, 72 S.Ct. 699; Quirin, 317 U.S. at 31 & nn. 9-10, 63 S.Ct. 2. Moreover, the Constitution vests broad war powers in the Congress, Eisentrager, 339 U.S. at 788, 70 S.Ct. 936, and military-commission trials are part of waging war. See Yamashita, 327 U.S. at 11-12, 66 S.Ct. 340. Accordingly, placing the military commission outside the confines of Article III is “consistent with, rather than threatening to, the constitutional mandate of separation of powers.” N. Pipeline, 458 U.S. at 64, 102 S.Ct. 2858 (plurality); see also Maqaleh v. Hagel, 738 F.3d 312, 334 (D.C.Cir.2013) (“The prosecution of our wars is committed uniquely to the political branches....“).
As discussed earlier, supra Part II.A, the Congress acted well within its Article I powers when it made conspiracy triable by military commission. The challenged provision therefore falls within a historical exception to the Judicial Power Clause. The Supreme Court said it well more than 150 years ago:
Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and ... the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, ... the two powers are entirely independent of each other.
Dynes v. Hoover, 61 U.S. 65, 79, 20 How. 65, 15 L.Ed. 838 (1857) (emphases added). For this reason alone, Bahlul‘s Article III challenge should fail.
My colleagues suggest that, because inchoate conspiracy is not an expressly recognized international law-of-war offense, the challenged provision falls outside the historical safe harbor for military-commission jurisdiction and therefore violates Article III. See Maj. Op. 18-19; Concur. Op. 24. But this syllogism is faulty, even under their crabbed view of the Congress‘s Article I authority. A statute does not automatically violate the Judicial Power Clause simply because it falls outside a historical exception to Article III. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 587, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (“[P]ractical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.“); Schor, 478 U.S. at 851, 106 S.Ct. 3245 (“Although [formalistic and unbending] rules might lend a greater degree of coherence to this area of the law, they might also unduly constrict Congress’ ability to take needed and innovative action pursuant to its Article I powers.“). Instead, we apply the general standard for Judicial Power Clause challenges: the Schor balancing test. See Schor, 478 U.S. at 851, 106 S.Ct. 3245 (announcing “practical” test for
It was neither the legislative nor judicial view ... that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III courts. Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.
Palmore v. United States, 411 U.S. 389, 402, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); see also id. at 407, 93 S.Ct. 1670 (“neither this Court nor Congress has read the Constitution as requiring ... every criminal prosecution for violating an Act of Congress[] to be tried in an Art. III court“).
The Supreme Court‘s decision in Stern v. Marshall does not alter the analysis. There, the Supreme Court held that the Congress could not constitutionally authorize the bankruptcy courts to hear a debtor‘s compulsory state-law counterclaim. See 131 S.Ct. at 2620. The Stern Court emphasized that its holding was “narrow” and “isolated.” Id.; see also Sharif, 135 S.Ct. at 1946 (“An expansive reading of Stern ... would be inconsistent with the opinion‘s own description of its holding.“). Its decision followed quite naturally from Northern Pipeline-another bankruptcy case. See 131 S.Ct. at 2615 (”Northern Pipeline directly covers this case.“). Despite the dissent‘s concern that the majority had not faithfully applied the balancing approach from earlier cases, including Schor, see Stern, 131 S.Ct. at 2622 (Breyer, J., dissenting), the Stern Court did not overrule, or even call into question, those precedents. See id. at 2615. In fact, the Court faithfully applied Schor‘s multi-factor balancing approach. See id. at 2614-19; see also id. at 2621 (Scalia, J., concurring) (“I count at least seven different reasons given in the Court‘s opinion for concluding that an Article III judge was required to adjudicate this lawsuit.“). Indeed, Sharif-the Supreme Court‘s latest pronouncement on the Judicial Power Clause-confirmed that the Schor balancing test remains the correct one. See Sharif, 135 S.Ct. at 1944-46.
My colleagues suggest, however, that the proper allocation of power between the Congress and the Judiciary turns on the latter‘s interpretation of international law. See Maj. Op. 7-10; Concur. Op. 24-26. This approach is troubling enough under Article I; but the notion that international law dictates the operation of the separation of powers under our Constitution is outlandish. Indeed, the notion “runs counter to the democratic accountability and federal structure envisioned by our Constitution.” Hon. J. Harvie Wilkinson III, The Use of International Law in Judicial Decisions, 27 HARV. J.L. & PUB. POL‘Y 423, 429 (2004). Instead, if the challenged provision falls outside a historical exception to Article III, we must still assess it under Schor. Schor‘s balancing test is the only one that considers factors that are relevant to the separation-of-powers concerns underlying the Judicial Power Clause. We should look to separation-of-powers interests to decide separation-of-powers questions.
It is unclear whether Bahlul “consented” to trial by military commission. Although he resisted being tried at all, he never raised an Article III objection to the military commission. Compare Sharif, 135 S.Ct. at 1948 (“[T]he key inquiry is whether the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the non-Article III adjudicator.” (emphasis added) (quotation marks omitted)), with id. at 1947 (“[T]he cases in which this Court has found a violation of a litigant‘s right to an Article III decisionmaker have involved an objecting defendant forced to litigate involuntarily before a non-Article III court.” (emphasis added)), and United States v. Underwood, 597 F.3d 661, 669-73 (5th Cir.2010) (in criminal case, failure to raise Article III objection can constitute implied consent). In my view, “consent” from an enemy combatant like Bahlul does not meaningfully tip the scales one way or the other.
On the other side of the balance, several factors indicate that conspiracy to commit war crimes can be constitutionally tried by military commission. First, and most importantly, the Congress has subjected the military commission to judicial review. The 2009 MCA, like its 2006 predecessor,
Second, the military commission has very limited jurisdiction under the 2006 MCA. It “deals only with a particularized area of law“-namely, the law of war. Schor, 478 U.S. at 852, 106 S.Ct. 3245 (quotation marks omitted). The 2006 MCA enumerates, in total, 30 war crimes,
Third, “the concerns that drove Congress to depart from the requirements of Article III” tilt in favor of the challenged provision‘s constitutionality. Id. at 851, 106 S.Ct. 3245. The Congress chose the military commission over Article III court for one overriding reason: national security. Among the discussed concerns were the potential disclosure of highly classified information
Unlike my concurring colleague, who believes that Article III courts are well-suited to try conspirators like Bahlul, see Concur. Op. 26-27, I would defer to the choice made by the Congress-an institution with real-world expertise in this area that has rejected a one-size-fits-all choice of forum. In any event, the Congress‘s concerns are plainly legitimate; indeed, “no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). And these legitimate interests demonstrate without question that the Congress did not “transfer jurisdiction to [a] non-Article III tribunal[] for the purpose of emasculating constitutional courts.” Schor, 478 U.S. at 850, 106 S.Ct. 3245 (emphasis added) (alterations and quotation marks omitted).
Finally, the system that the Congress has established-military-commission proceedings in the Executive Branch, appellate review in the Judicial Branch-“raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.” Schor, 478 U.S. at 856, 106 S.Ct. 3245. As the Supreme Court explained in Mistretta, “encroachment and aggrandizement” are the hallmarks of cases in which the Court has invalidated a congressional statute for violating the separation of powers. 488 U.S. at 382, 109 S.Ct. 647. “By the same token,” the Supreme Court has “upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment.” Id. (citing, as examples, Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) and Schor, 478 U.S. 833, 106 S.Ct. 3245). In the 2006 MCA, the Congress has assigned conspiracy to the military for trial and sentencing and to the Judiciary for review “without appreciable expansion of its own power,” Schor, 478 U.S. at 856-57, 106 S.Ct. 3245, and while “retain[ing] for itself no powers of control or supervision,” Morrison, 487 U.S. at 694, 108 S.Ct. 2597. This is not the sort of legislation that raises separation-of-powers hackles.
Notably, the Supreme Court has found a violation of the Judicial Power Clause in only two cases-both involving bankruptcy courts. See Stern, 131 S.Ct. at 2620; Northern Pipeline, 458 U.S. at 87, 102 S.Ct. 2858 (plurality). Outside the bankruptcy context, however, the Court has repeatedly upheld congressional statutes against such attacks. See, e.g., Mistretta, 488 U.S. at 393-97, 109 S.Ct. 647 (U.S. Sentencing Commission); Schor, 478 U.S. at 851-58, 106 S.Ct. 3245 (CFTC); Union Carbide, 473 U.S. at 582-93, 105 S.Ct. 3325
For these reasons, I believe the challenged provision satisfies the Schor balancing test. Moreover, irrespective of Schor, the statute falls comfortably within the Congress‘s Article I authority and, concomitantly, under the military-commission exception to Article III. Bahlul‘s Judicial Power Clause challenge therefore fails.
2. Criminal Jury Clause
In addition to ensuring the separation of powers, Article III also protects individual rights. The
Bahlul-an enemy combatant tried by military commission-has no right to a jury. At common law, “trial by a jury” was a “familiar part[ ] of the machinery for criminal trials in the civil courts.” Id. But it was “unknown to military tribunals, which are not courts in the sense of the Judiciary Article, and which in the natural course of events are usually called upon to function under conditions precluding resort to such procedures.” Id. (citations omitted). For example, the Continental Congress passed a resolution ordering the trial of alien spies in military courts without a jury. See id. at 41, 63 S.Ct. 2 (citing Resolution of the Continental Congress of Aug. 21, 1776, 5 J. CONT‘L CONG. 693). The resolution-a “contemporary construction” of the Constitution “entitled to the greatest respect“-manifests that the Founders did not see juries as a limitation on military-commission trials. Id. at 41-42, 63 S.Ct. 2; see also Kahn v. Anderson, 255 U.S. 1, 8, 41 S.Ct. 224, 65 L.Ed. 469 (1921) (rejecting idea that military courts must use jury because it would “directly den[y] the existence of a power [that] Congress exerted from the beginning“). Moreover, members of our own military are tried by court martial without a jury; thus, the Constitution plainly presents “no greater obstacle” to trying enemy combatants by military commission. Quirin, 317 U.S. at 44, 63 S.Ct. 2; see also Whelchel v. McDonald, 340 U.S. 122, 127, 71 S.Ct. 146, 95 L.Ed. 141 (1950) (“The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions.“); Sanford v. United States, 586 F.3d 28, 35 (D.C.Cir.2009) (“[T]he Sixth Amendment right to a criminal jury trial does not, itself, apply to the military.“). As discussed earlier, supra Part II.A, the Congress has the Article I authority to require Bahlul to be tried by military commission. He therefore has no right to a jury. See Quirin, 317 U.S. at 40, 63 S.Ct. 2 (“[section] 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission“); id. at 41, 63 S.Ct. 2 (“trials before military commissions ... are no[t] within the provisions of Article III, § 2“); accord Colepaugh, 235 F.2d at 433 (”Quirin ... removes any doubt of the inapplicability of the Fifth or Sixth Amendments to trials before military commissions.“).
Bahlul contends, however, that the Criminal Jury Clause, like the Judicial Power Clause, is a structural limitation on military-commission jurisdiction. Specifically, he believes-and my colleagues at one point appear to agree, see Maj. Op. 9-that a military commission has no jurisdiction of offenses triable by jury at common law. Bahlul is mistaken. The right to a jury is not a “structural” constraint but an individual right that can be both forfeited and waived. Johnson, 520 U.S. 461, 465-66, 117 S.Ct. 1544 (1997); see also B & B Hardware, 135 S.Ct. at 1304 (jury-trial right “does not strip competent tribunals of the power to issue judgments,” no matter “the nature of the competent tribunal“); Gosa v. Mayden, 413 U.S. 665, 677, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973) (plurality) (denial of jury-trial right does not deprive military tribunal of jurisdiction or render its judgments void). Even Schor recognized this difference:
[A]s a personal right, Article III‘s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil and criminal matters must be tried. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (waiver of right to trial by jury in criminal case).
478 U.S. at 848-49, 106 S.Ct. 3245 (some citations omitted). The right to a jury-regardless of its location in Article III-is no more a structural limitation on military-commission jurisdiction than are the myriad personal safeguards in the Bill of Rights. Cf. Seals, 130 F.3d at 456 n. 3 (“constitutional safeguards associated with Article III supervision of federally-indicting grand juries ... implicate[ ] personal, not structural, constitutional rights” (citations omitted)).
The Supreme Court‘s Seventh Amendment jurisprudence makes doubly clear that the right to a jury is not an independent constraint on the Congress‘s authority to use non-Article III tribunals. In Granfinanciera, the petitioners argued that their Seventh Amendment right to a civil jury prevented the Congress from assigning certain claims to the bankruptcy courts. See 492 U.S. at 36-37, 109 S.Ct. 2782. According to the Court, whether
Even if the Criminal Jury Clause did limit military-commission jurisdiction, it has no application here because Bahlul is neither a U.S. citizen nor present on U.S. soil. The Supreme Court has repeatedly held that the Constitution offers no protection to noncitizens outside the United States. See, e.g., Eisentrager, 339 U.S. at 784-85, 70 S.Ct. 936; United States v. Verdugo-Urquidez, 494 U.S. 259, 273-75, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Kwong Hai Chew v. Colding, 344 U.S. 590, 597 n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953); United States v. Belmont, 301 U.S. 324, 332, 57 S.Ct. 758, 81 L.Ed. 1134 (1937); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 81 L.Ed. 255 (1936). This limitation on the Constitution‘s extraterritorial reach encompasses the right to a jury trial in a criminal case. See, e.g., Eisentrager, 339 U.S. at 784-85, 70 S.Ct. 936; Balzac v. Porto Rico, 258 U.S. 298, 304-05, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Dorr v. United States, 195 U.S. 138, 149, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Territory of Hawaii v. Mankichi, 190 U.S. 197, 218, 23 S.Ct. 787, 47 L.Ed. 1016 (1903). Granted, in Reid v. Covert, a plurality of the Supreme Court agreed that the right to a jury extends to U.S. citizens abroad. See 354 U.S. at 7, 77 S.Ct. 1222. But “[s]ince [Bahlul] is not a United States citizen, he can derive no comfort from the Reid holding.” Verdugo-Urquidez, 494 U.S. at 270, 110 S.Ct. 1056. The cases Bahlul relies on to support his jury-right argument suffer from the same fatal flaw: all involved U.S. citizens. See Reid, 354 U.S. at 3, 77 S.Ct. 1222 (citizen wives of U.S. soldiers); Toth, 350 U.S. at 13, 76 S.Ct. 1 (U.S. soldier); Quirin, 317 U.S. at 20, 63 S.Ct. 2 (Nazi saboteur with U.S. citizenship through his parents); Milligan, 71 U.S. at 107 (U.S. citizen living in Indiana).
In Boumediene v. Bush, the Supreme Court held “only” that the
Bahlul has no constitutional right to a jury and neither the Criminal Jury Clause nor the Judicial Power Clause of Article III can invalidate his conspiracy conviction.
C. EQUAL PROTECTION & FIRST AMENDMENT
Bahlul‘s two remaining challenges are frivolous. He contends that the 2006 MCA violates the equal protection component of the
For the foregoing reasons, I respectfully dissent.
PETALUMA FX PARTNERS, LLC, Ronald Scott Vanderbeek, A Partner other than the Tax Matters Partner, Appellee.
v.
COMMISSIONER OF INTERNAL REVENUE Service, Appellant.
No. 12-1364.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 18, 2014.
Decided June 26, 2015.
Notes
In any event, to the extent the Government misinterprets Schor, I would decline to accept its interpretation. See Young v. United States, 315 U.S. 257, 259, 62 S.Ct. 510, 86 L.Ed. 832 (1942) (“The proper administration of the
To the extent it makes a difference, the plain-error standard does have a statutory basis in enemy combatant cases. The 2009 MCA provides that “[a] finding or sentence of a military commission ... may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”
- traveled to Afghanistan with the purpose and intent of joining al Qaeda;
- met with Saif al ‘Adl, the head of the al Qaeda Security Committee, as a step toward joining the al Qaeda organization;
- underwent military-type training at an al Qaeda sponsored training camp then located in Afghanistan near Mes Aynak;
- pledged fealty, or “bayat,” to the leader of al Qaeda, Usama bin Laden, joined al Qaeda, and provided personal services in support of al Qaeda;
- 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 and indoctrinate personnel to the organization and objectives of al Qaeda, and to solicit, incite and advise persons to commit Terrorism;
- acted as personal secretary and media secretary of Usama bin Laden in support of al Qaeda;
- arranged for Muhammed Atta, also known as Abu Abdul Rahman al Masri, and Ziad al Jarrah, also known as Abu al Qa‘qa al Lubnani, to pledge fealty, or “bayat,” to Usama bin Laden;
- prepared the propaganda declarations styled as martyr wills of Muhammed Atta and Ziad al Jarrah in preparation for the acts of terrorism perpetrated by the said Muhammed Atta, Ziad al Jarrah and others at various locations in the United States on September 11, 2001;
- at the direction of Usama bin Laden, researched the economic effect of the September 11, 2001 attacks on the United States, and provided the result of that research to Usama bin Laden;
- operated and maintained data processing equipment and media communications equipment for the benefit of Usama bin Laden and other members of the al Qaeda leadership.
Elsewhere, Winthrop included conspiracy among these offenses. See id. at 842 (“[c]onspiracy” is “both a crime against society and a violation of the laws of war“); WILLIAM WINTHROP, A DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY 328-29 (1880) (“[c]onspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” is an “offence[] against the laws and usages of war“).[B]reaches of the law of non-intercourse with the enemy, such as running or attempting to run a blockade; unauthorized contracting, trading or dealing with, enemies, or furnishing them with money, arms, provisions, medicines, & c.; conveying to or from them dispatches, letters, or other communications, passing the lines for any purpose without a permit, or coming back after being sent through the lines and ordered not to return; aiding the enemy by harboring his spies, emissaries, & c.; assisting his people or friends to cross the lines into his country, acting as guide to his troops; aiding the escape of his soldiers held as prisoners of war, secretly recruiting for his army, negotiating and circulating his currency or securities—as counterfeit notes or bonds in the late war, hostile or disloyal acts, or publications or declarations calculated to excite opposition to the federal government or sympathy with the enemy, & c.; engaging in illegal warfare as a guerilla, or by the deliberate burning, or other destruction of boats, trains, bridges, buildings, & c.; acting as a spy, taking life or obtaining any advantage by means of treachery; abuse or violation of a flag of truce; violation of a parole or of an oath of allegiance or amnesty; breach of bond given for loyal behavior, good conduct, & c.; resistance to the constituted military authority, bribing or attempting to bribe officers or soldiers or the constituted civil officials; kidnapping or returning persons to slavery in disregard of the President‘s proclamation of freedom to the slaves, of January 1, 1863.