Lead Opinion
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Circuit Judge TATEL.
Dissenting opinion by Circuit Judge HENDERSON.
Pursuant to the Military Commissions Act of 2006, 10 U.S.C. §§ 948a et seq. (“2006 MCA”), a law of war military commission convened at Guantanamo Bay, Cuba, found Ali Hamza Ahmad Suliman al Bahlul guilty of material support for terrorism, solicitation of others to commit war crimes, and inchoate conspiracy to commit war crimes. The court, sitting en banc, vacated Bahlul’s convictions for material support and solicitation as violative of the Ex Post Facto Clause of the U.S. Constitution, see Bahlul v. United States,
Because Bahlul’s challenges include a structural objection under Article III that cannot be forfeited, see Commodity Futures Trading Comm’n v. Schor,
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 forfeita-ble.
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,
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,
The Court reaffirmed Schor’s analysis in Plaut v. Spendthrift Farm, Inc.,
Of course, the issue before us is not waiver but forfeiture. See generally United States v. Olano,
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,
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,
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,
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 Bah-lul 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,
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.’ ” Stem,
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.
Stem,
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-Artiele III courts to try eases in the District of Columbia and U.S. territories not within a state. See Palmore v. United States,
A.
The Supreme Court addressed the contours of the exception to Article HI for law of war military commissions in the seminal case of Ex parte Quirin,
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,
In Quirin, the Supreme Court described the law of war as a “branch of international, law,”
Id. at 28,
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 offénses constitutionally triable only by a jury.
Id. at 29,
The Supreme Court has adhered to Quinn ’s understanding of the meaning of the “law of war” for over seventy years. In Application of Yamashita,
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,
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 Quiñn. 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 Quiñn is not limited to international law of war offenses because “the sabotage offense at issue in Quiñn — 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 Quiñn concluded otherwise. It looked to “authorities on International Law” who “regarded as war criminals” saboteurs who passed behind enemy lines without uniform.
Alternatively, the government maintains that even if Quiñn 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,
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.’ ” Quiñn,
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,
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,
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,
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,
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,
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,
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,
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,
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,” U.S. Const, art. I, § 8, cl. 10, “declare War,” id. § 8, cl. 11, “raise and support Armies,” id. § 8, cl. 12, “provide and maintain a Navy,” id. § 8, cl. 13, “make Rules for the Government and Regulation of the land and naval Forces,” id. § 8, cl. 14, “provide for calling forth the Militia,” id. § 8, cl. 15, and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” id. § 8, cl. 18. Because the war powers contain no textual limitation based on international law, the government concludes there is no such restriction on military commission jurisdiction. See Appel-lee’s Br. 29-30. In the government’s view, the war powers support military jurisdiction oyer any offense “committed by an enemy belligerent during and in relation to an armed conflict with the United States [that] ... has a palpable effect on the nature of that conflict.” Oral Arg. Tr. 49.
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,
In applying the Define and Punish Clause, the Supreme Court long ago cautioned that “[wjhether 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,
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,
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,
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,
In Toth,
The government’s response is that Congress may enact legislation “necessary to comply with our nation’s international responsibilities.” Appellee’s Br. 45. In Ar-
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,” U.S. Const, art. I, § 8, cl. 10, itself makes those offenses “cognizable by [military] tribunals.” Quirin,
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.” Appel-lee’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’s position is confounded by the Supreme Court’s repeated reluctance to extend military jurisdiction based on the Necessary and Proper Clause. See, e.g., Singleton,
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,
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,
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 retained] supervisory authority over the process.” Sharif,
Another factor the Supreme Court has considered is the “concern[] that drove Congress to depart from the requirements of Article III.” Schor,
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,
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,
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 Article III places on the other branches with respect to the “judicial Power of the United States.” U.S. Const, art. Ill, § 1.
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,” U.S. Const, art. I, § 8, cl. 10.
Accordingly, we hold that Bahlul’s conviction for inchoate conspiracy by a law of war military commission violated the separation of powers enshrined in Article III § 1 and must be vacated. We need not and do not address Bahlul’s other contentions.
Notes
. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1 Bevans 247.
. See Statute of the Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 138; Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90; Stat- ' ute of the International Tribunal for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/ 955 (1994), reprinted in 33 I.L.M. 1598, 1602; Statute of the International Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192. Some modern tribunals recognize war crimes liability through participation in a joint criminal enterprise, see Prosecutor v. Milutinovic, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction — Joint Criminal Enterprise, ¶ 26 (Int’l Crim. Trib. for the Former Yugoslavia, Appeals Chamber, May 21, 2003); Rwamakuba v. Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, ¶ 30 (Oct. 22, 2004), but the prosecutor at Bahlul's military commission withdrew that charge against him, see Trial Tr. 110, 881 (cited in Bahlul,
Concurrence Opinion
concurring:
Although I agree that al Bahlul’s conviction runs afoul of Article III of the Consti
Sitting en banc, this Court decided last year that the Ex Post Facto Clause does not prevent Congress from granting military commissions jurisdiction over the crime of conspiracy. We began by noting that in the months leading up to the September 11th attacks, when al Bahlul committed his crimes, federal law gave military commissions jurisdiction over “offenders or offenses that by statute or by the law of war may be tried by military commissions.” 10 U.S.C. § 821 (emphasis added). Because no statute on the books in 2001 allowed military commissions to try conspiracy, the en banc Court needed to determine whether that crime qualified as a “law of war” offense at that time and was thus triable by military commission. If so, the Court observed, al Bahlul’s ex post facto argument would necessarily fail. Reviewing much of the same history and case law before us now, the en banc Court was unable to conclude that “conspiracy was not already triable by law-of-war military commissions” in 2001. Al Bahlul v. United States,
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 Article III argument below. But even if that were true, the Article III claim is structural, see Reid v. Covert,
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 Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not.
Article III provides that Congress “may vest[ ] ... the judicial power of the United States ... only in courts whose judges enjoy the protections set forth in that Article.” Stern v. Marshall, — U.S. -,
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,
That question is critical here because in defending the constitutionality of MCA section 950, the government concedes that conspiracy does not violate the international law of war, thus implicitly acknowledging that by enacting that provision, Congress was not exercising its Article I authority to “define” the law of war. Given this, the issue before us is not whether this court must defer to Congress’s “definition” of international law, but whether, as the government insists, the law of war includes some domestic crimes.
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 Uniform Code of Military Justice. In other words, the Court ruled that domestic law could limit military commission jurisdiction, but it had no reason to decide whether it could extend it.
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,
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,
Thus, although the Court held in Ham-dan that domestic law — namely, the UCMJ — can limit the scope of military-commission jurisdiction, only three Justices would have extended that jurisdiction beyond the international law of war to the “American common law of.war.” Given this, and given that Article III courts.are the default, that exceptions must be “delineated in [the Court’s] precedents,” Northern Pipeline,
Moreover, and again proceeding on de novo review, I see nothing in Article I of the Constitution that requires a different result. Judge Rogers demonstrates this convincingly. See Op. at 12-16. I add only that were the government correct about Article I, Congress would have virtually unlimited authority to bring any crime within the jurisdiction of military commissions — even theft or murder — -so long as it related in some way to an ongoing war or the armed forces. Congress could simply declare any crime to be a violation of the law of war and then vest military commissions with jurisdiction to try it, thereby gutting Article Ill’s critical protections. The Supreme Court rejected that view of Article I in Northern Pipeline. There, the Court concluded that Congress had no authority to establish bankruptcy courts entirely outside of Article Ill’s reach because any limit on such “broad legislative discretion” would prove “wholly illusory.” Northern Pipeline,
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 Guantá-namo 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 Uth-man Muhammed, David Hicks, Omar Khadr, Majid Khan, Ibrahim al Qosi, and Ahmed al Darbi. See Miami Herald, Guantanamo: 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.
Dissenting Opinion
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,
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,
Accordingly, I must dissent.
I. Standard of Review. .29
II. The Constitutional Challenges 42
A. Article I. 43
52 2. Necessary and Proper Clause ...
55 3. Broader War Powers.
56 a. Supreme Court Precedent ..
58 b. Winthrop’s Treatise.
59 c. Historical Practice.
B. Article III..
1. Judicial Power Clause. 63
2. Criminal Jury Clause . 69
C. Equal Protection & First Amendment. 72
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, Tiventy 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. 10 U.S.C. § 948c (2006). He contends that his conviction of conspiracy to commit war crimes, 10 U.S.C. § 950v(28) (2006) (the challenged provision), violates the Define and Punish' Clause of Article I, the Judicial Power and Criminal Jury Clauses of Article III, the equal protection component of the Fifth Amendment Due Process Clause and the First Amendment. Had Bahlul properly preserved these questions of law, we would review them de novo. See United States v. Popa,
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,
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,
The rule operates differently in civil and criminal cases. See Salazar ex rel. Salazar v. Dist. of Columbia,
The plain-error standard applies to “all” forfeited arguments in a criminal case. Puckett,
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.” 10 U.S.C. §§ 948d(a), 950v(b)(28) (2006). It “explicitly confers jurisdiction on military commissions to try [Bahlul on] the charged offenses.” Bahlul,
Bahlul’s challenge under the Judicial Power Clause of Article III is also forfeita-ble. Like his Define and Punish Clause argument, his Judicial Power Clause challenge is to the constitutionality of a jurisdictional statute, a challenge that is itself, to repeat, plainly nonjurisdictional. See Williams,
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:
[0]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 HI, § 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 constitutional 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 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.
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,
[T]he proposition that legal defenses based upon doctrines central to the courts’ structural independence can never be waived simply does not accord*34 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 Article III challenge, because “when these Article III limitations are at issue, notions of consent and waiver cannot be dispositive,” id., at 851,106 S.Ct. 3245 (emphasis added). See also Freytag v. Commissioner,501 U.S. 868 , 878-879,111 S.Ct. 2631 ,115 L.Ed.2d 764 (1991) (finding a “rare cas[e] in which we should exercise our discretion” to hear a waived claim based on the Appointments Clause, Art. II, § 2, cl. 2).
Plant,
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 Plant. See Wellness Int’l Network, Ltd v. Sharif,
In B & B Hardware, Inc. v. Hargis Indus., Inc., — U.S. -,
In Wellness International Network, Ltd. v. Sharif, — U.S. -,
[Respondent forfeited any Stem objection by failing to present that argument properly in the courts below. Stem vindicates Article III, but that does not mean that Stem 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,
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 Article III. See Maj. Op. 4, 5, 6 (citing Sharif,
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.
[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.
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.
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 “éxceptional circumstances.” Air Fla.,
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,
Courts apply plain-error review in criminal cases notwithstanding “the seriousness of the error claimed.” Johnson,
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,
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,
Further, excusing Bahlul’s forfeiture would not serve the interests of justice because he is concededly — and unapologet-ically — 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.,
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.
In sum, I believe my colleagues err by parting ways with the en banc court and reviewing Bahlul’s Article III challenge de novo. Their decision to sidestep the plain-error standard reads too much into an obscure passage from Schor — a reading the Supreme Court disavowed in Plant and overruled in Sharif— and ignores important distinctions between civil and criminal cases. Cf Sharif, dissenting op. at 1970 (Thomas, J.) (Article III issues “cannot — and should not — be resolved through a cursory reading of Schor, which itself is hardly a model of careful constitutional interpretation”).
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,
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 Article I powers and independently violated Article III; (ii) he was convicted based on his thoughts, beliefs and ideals in contravention of ■ the First Amendment; and (iii) the 2006 MCA discriminates against him as an alien in violation of the equal protection component of the Fifth Amendment. The latter two arguments are frivolous on their face. See infra Part II.C. Bahlul’s Article I and Article III arguments, however, warrant a more thorough examination.
As detailed below, the Congress acted within its Article I authority and did not contravene any personal or structural Article III principles in codifying conspiracy as an offense triable by military commission. Bahlul’s conspiracy trial and conviction were sanctioned by the President,
[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,
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,
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,
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 Of-fences against the Law of Nations.” U.S. Const, art. I, § 8, cl. 10. The power to “define” means that the Congress can “determine,” “decide” or “lay down definitely” offenses against the law of nations. Define, Oxford English DictionaRY (2d ed.1989). The word “define” — especially joined by the conjunction “and” — has teeth.
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 pira-cies 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 Reoords 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 at
[International 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 op 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,
■ 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,
But the precedent my colleagues cannot reconcile with their Define and Punish Clause holding is Application of Yamashi-ta,
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,
The holding was attacked — molto agita-to — by the two dissenting Justices, see id. at 35,
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,
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 Nurem-burg 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,
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,
Nor does the Define and Punish Clause require the Congress to wait for the international community to catch up. The Ya-mashita Court did not play “Mother, may I” with established international law. See
[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 Qui-rin operated under section 821 (or its predecessor), giving military commissions jurisdiction of “offenses that by statute or by the law of war may be tried by military commissions.” 10 U.S.C. § 821 (emphasis added). By enacting this statute, however, the Congress did not “itself undertake[ ] to ... define” the law of war but instead left its definition to the courts. Quirin,
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
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,
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 10 U.S.C. § 950v(28) (2006). Inexplicably, my colleagues suggest that the Congress was not exercising its power to “define” the law of nations in enacting the challenged provision. Maj. Op. 16; Concur. Op. 24-25. The en banc court, however, necessarily recognized that the Congress was exercising its power to “define” in the 2006 enactment. See Bah-lul,
.Bahlul’s conspiracy conviction thus stands on firmer constitutional footing than Hamdan’s, Quirin’s or even Yamashi-ta’s convictions. The Congress has in fact exercised its Article I power to “define” conspiracy as an offense against the law of nations. The difference between this case and Hamdan is the difference between Justice Jackson’s first and third categories, respectively. See Youngstown,
Accordingly, the Congress’s decision to defihe 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 Article I powers and, to me, the inclusion of conspiracy to commit war crimes in the 2006 MCA is plainly within its authority under the Define and Punish Clause.
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,
In Comstock, the Supreme Court held that the Necessary and Proper Clause
First, as Comstock emphasized, the Congress’s power under the Necessary and Proper Clause is broad. See id. at 133,
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,
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.” Com-stock,
Third, the Congress has indisputably sound reasons for codifying conspiracy as a war crime triable by military commission. As the Supreme Court has ex
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,
Neither of these concerns exists here. There is no risk that a countervailing constitutional right supersedes the Necessary
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
“[0]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,
• “[T]o ... provide for the common De-fence and general Welfare of the United States,” U.S. Const, art. I, § 8, cl. i;
• “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,
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 Madseri, 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,
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.”
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 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,
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,
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,
I believe my colleagues have incautiously interfered with the reasoned decisions of the political branches based solely on Quinn, a case in which the Supreme Court affirmatively faded to draw the line they today draw. See
b. Winthrop’s Treatise
As discussed, neither the plain text of the Congress’s Article I war powers nor Supreme Court precedent examining the contours of law-of-war military-commission jurisdiction supports the “clear conviction” needed to invalidate Bahlul’s conspiracy charge. Quirin,
Notwithstanding his reference to the “Law of War” as “intended [to refer to] that branch of International Law which
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,
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 the
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,
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,
My colleagues also distinguish the conspiracy charges in Colepaugh v. Looney,
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,
In sum, I would hold that Bahlul has not carried his burden of establishing— “clear[lyj” or otherwise — that his military trial and conviction are unconstitutional. Quirin,
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,
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 Judicial Power Clause, U.S. Const, art. Ill, § 1, and the Criminal Jury Clause, id. § 2, cl. 3. I analyze both arguments below.
1. Judicial Power Clause
The Judicial Power Clause of Article III provides:
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....
U.S. Const, art. Ill, § 1. The Clause mirrors similar grants of power to the Congress in Article I and to the President in Article II. See id. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress .... ”); id. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President....”). Together, the Vesting Clauses erect “walls” that separate the three branches, Plant,
Section 1 of Article III vests the “judicial Power” in the federal courts, whose judges enjoy life tenure and fixed salaries. See U.S. Const, art. Ill, § 1. The “judicial Power,” as relevant here, extends to “Cases ... arising under ... the Laws of the United States.” Id. § 2, cl. 1. Axiomatically, these provisions require Article III cases to be adjudicated by Article III judges in Article III courts. See Stem,
Despite this analytic simplicity, however, “the literal command of Art. Ill ... 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,
The military commission is one such exception. See Eisentrager,
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,
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.,
It was neither the legislative nor judicial view ... that trial and decision of all federal questions were reserved for Art. Ill judges. Nor, more particularly has the enforcement of federal criminal law been deemed the exclusive province of federal Art. Ill 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,
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 debt- or’s compulsory state-law counterclaim. See
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,
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,
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,
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,
Notably, the Supreme Court has found a violation of the Judicial Power Clause in only two cases — both involving bankruptcy courts. See Stem,
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 Criminal Jury Clause broadly requires that “[t]he Trial of all Crimes ... shall be by Jury ... in the State where the said Crimes shall have been committed” or where the “Congress may by Law have directed.” U.S. Const, art. Ill, § 2, cl. 3. Like the Sixth Amendment, the Criminal Jury Clause preserves the right to a jury only as it existed at common law. Quirin,
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,
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,
[A]s a personal right, Article Ill’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).
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
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,
In Boumediene v. Bush, the Supreme Court held “only” that the Suspension Clause protects enemy combatants held at Guantanamo Bay.
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 Pkotection & First Amendment
Bahlul’s two remaining challenges are frivolous. He contends that the 2006 MCA violates the equal protection component of the Fifth Amendment Due Process Clause because it applies only to aliens, not U.S. citizens, and that he was convicted because of his speech in violation of the First Amendment. Two of my colleagues have already considered these arguments and rejected them. See Bahlul,
For the foregoing reasons, I respectfully dissent.
. Most of Bahlul's arguments involve personal constitutional rights that are indisputably forfeitable. See Peretz v. United States,
. Nguyen v. United States,
. My colleagues note that the Government "conceded” their reading of Schor is correct. Maj. Op. 5. I do not take them to be saying, however, that the Government waived its plain-error argument. On the contrary, the Government "argued for plain-error review before the [United States Court of Military Commission Review (CMCR) ], in its original brief to a panel of this Court and in’its brief to the en banc court.” Bahlul,
In any event, to .the extent the Government misinterprets Schor, I would decline to accept its- interpretation. See Young v. United States,
. My colleagues also cite Stern v. Marshall, - U.S. -,
. My colleagues emphasize that in Sharif the Supreme Court reviewed the Article III question de novo. Maj. Op. 5, 6. This is true but unhelpful to them. The Supreme Court granted certiorari in Sharif to determine whether a party’s consent cures the structural Article III problem posed by bankruptcy court adjudication — a question that was decided by the Seventh Circuit and briefed in the Supreme Court. The Court answered the question in the affirmative. It then remanded to the Seventh Circuit to determine whether Sharif in fact consented to bankruptcy court adjudication and — if not — whether Sharif nonetheless forfeited his Judicial Power Clause challenge by not timely raising it. See
. Even if my colleagues were correct, that Sharif’s discussion of "waiver” refers to for-feilure, they could not reconcile the Court’s repeated admonitions that structural Article III challenges can, in fact, be waived. See, e.g., Sharif,
. The majority in Nguyen did not reach the Article III question because it decided the case on an alternate statutory ground. See
. None of this analysis — contrary to my colleagues' contention, Maj. Op. 6-7 — turns on the applicability of Fed.R.Crim.P. 52(b). The en banc court imported the plain-error standard into enemy combatant cases "whether or not Rule 52(b) directly governs.” Bahlul,
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.” 10 U.S.C. § 950a(a). The Congress took this language from the review provision in the Uniform Code of Military Justice (UCMJ). See id. § 859(a); see also id. § 948b(c) ("[t]he procedures for military commissions ... are based upon the procedures for trial by general courts-martial under ... the [UCMJ]”). The U.S. Court of Appeals for the Armed Forces (CAAF) has long read the UCMJ’s review provision to incorporate a plain-error standard that is identical, in all material respects, to Rule 52(b). See United States v. Tunstall,
. See Bahlul,
. In Hamdan, the plurality flipped Quirin's "clear conviction” language, stating "[w]hen ... neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous” because "[t]o demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution.” Hamdan,
. The other two sources included Article 19 of the Tenth Hague Convention, which mandated that commanding officers of bombarding naval vessels must adhere to the principles of the Tenth Hague Convention, Yamashita,
. Contrary to my colleagues’ suggestion, I do not rely on Yamashita as precedent that speaks directly to “the type of deference owed to Congress.” Maj. Op. 17. Rather, in Ya-mashita, as in Quinn and Hamdan, the Court noted that the Congress did not “itself undertake! ] to ... define” the law of war. See infra p. 50. It is wrong, however, to suggest that Yamashita does not bear on the proper interpretation of the Define and Punish Clause. Far from it. Yamashita demonstrates that the Supreme Court, implicitly rejecting the rigid international-law veto my colleagues rely upon to vacate Bahlul’s conviction, recognizes that military commissions may constitutionally try offenses that, like inchoate conspiracy, reflect broad international norms. My colleagues make no attempt to meet Yamashita on its terms and, given Ya-mashita ’s significance, the silence is deafening.
. Bahlul was also convicted of material support and solicitation, which convictions were earlier vacated by the en banc court. See Bahlul,
. My colleagues fault my reliance on Madsen because "that case involved a military government commission, not a law of war military commission.” Maj. Op. 19. But Madsen’s reliance on Yamashita, in which case the Supreme Court expressly decided a law-of-war military commission had jurisdiction over a law-of-war offense, makes plain that Mad-sen ’s discussion of "the history of United States military commissions” encompasses Bahlul’s military .commission. See Madsen,
. The charges against Bahlul, on which he was convicted, alleged that he:
a.traveled to Afghanistan with the purpose and intent of joining al Qaeda;
b. met with Saif al ‘Adi, the head of the al Qaeda Security Committee, as a step toward joining the al Qaeda organization;
c. underwent military-type training at an al Qaeda sponsored training camp then located in Afghanistan near Mes Aynak;
d. 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;
e. 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*49 Qaeda, and to solicit, incite and advise persons to commit Terrorism;
f. acted as personal secretary and media secretary of Usama bin Laden in support of al Qaeda;
g. 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;
h. 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 Jar-rah and others at various locations in the United States on September 11,-2001;
i. , 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;
j. operated and maintained data processing equipment and media communications equipment for the benefit of Usa-ma bin Laden and other members of the al Qaeda leadership.
Charge Sheet 2-3; Findings Worksheet 3-4.
. Unlike my colleagues, see Maj. Op. 15, 16-17, I do not find the dicta from United States v. Furlong,
. See, e.g., H.R.Rep. No. 109-664, pt. 1, at 24 (2006) ("The offenses defined here ... reflect the codification of the law of war into the United States Code pursuant to Congress's constitutional authority to ‘Define and Punish * * * Offences against the Law of Nations.’ ”); id., pt. 2, at 15 ("[T]he Committee finds the authority for this legislation in article 1, section 8 of the Constitution, including clauses 10 [the Define and Punish Clause], 11, 14 and 18.”); S. 3930, 109th Cong. § 102 (2006) (“Congress makes the following findings: (1) The Constitution of the United States grants to Congress the power ‘To define and punish ... Offenses against the Law of Nations’, as well as the power 'To declare War ... To raise and support Armies ... and To provide and maintain a Navy’.... It is in the national interest for Congress to exercise its authority under the Constitution to enact legislation authorizing and regulating the use of military commissions to try and punish violations of the law of war.”).
. My colleagues’ reliance on Kinsella v. United States ex rel. Singleton,
. See, e.g., Hamdan,
. Winthrop, supra, at 839-40:
[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.
Elsewhere, Winthrop included conspiracy among these offenses. See id. at 842 (“[c]on-spiracy” 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) (“[cjonspiracy 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”).
. My colleagues object to my reliance on Milligan, having been decided after the military-commission trial of the Lincoln conspirators. See Maj. Op. 12. Three Lincoln con
. See United States Army Forces, Pacific, Regulations Governing the Trial of War Criminals (Sept. 24, 1945) (making "participation in a common plan or conspiracy” punishable by military commission in Pacific Theater of Operations during World War II); United States Army Forces, China, Regulations Governing the Trial of War Criminals (Jan. 21, 1946) (same for China theater of operations).
. See U.N. Command, Rules of Criminal Procedure for Military Commissions of the United Nations Command at Rule 4 (Oct. 22, 1950) (making "all attempts to commit, or conspiracies and agreements to commit, as well as inciting, encouraging, aiding, abetting, or permitting violations of the laws and customs of war” committed during Korean War punishable by U.N. military commission); Gen. Douglas MacArthur, Letter Order, Gen. HQ, U.N. Command, Tokyo, Japan, Trial of Accused War Criminals (Oct. 28, 1950) (adopting Rule 4).
. The 2009 MCA, Pub.L. No. 111-84, 123 Stat. 2190, was enacted in October 2009, after Bahlul’s military-commission trial but before his appeal to the CMCR. See United States v. Bahlul,
.See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen. Frist); id. (statement of Sen. Warner); 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of Rep. Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep. Hunter); 152 Cong. Rec. S10354 (Sept. 28, 2006) (statement of Sen. Bond); id. (statement of Sen. McConnell); id. (statement of Sen. Frist).
. See, e.g., 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of Rep. Hunter); id. (statement of Rep. Sensenbrenner); id. (statement of Rep. Cardin); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep. Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep. Sensenbrenner).
. See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen. Graham); id. (statement of Sen. Kyi); 152 Cong. Rec. S10354
. See 10 U.S.C. § 948b(d)(l)(A) (2006) (making “speedy trial” rules inapplicable in military commissions). See generally Scott L. Silliman, Prosecuting Alleged Terrorists by Military Commission: A Prudent Option, 42 Case W. Res. J. Int’l L. 289, 294 (2009).
. See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen. Graham); 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of Rep. Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep. Hunter).
.See, e.g., 155 Cong. Rec. S5589 (May 19, 2009) (statement of Sen. McConnell); id. (statement of Sen. Johanns); id. (statement of Sen. Martinez); 155 Cong. Rec. S5650 (May 20, 2009) (statement of Sen. Thune); 155 Cong. Rec. S7509 (Jul. 15, 2009) (statement of Sen. Inhofe).
. Notably, the Hamdan Court cited only the Judicial Power Clause, not the Criminal Jury Clause, as a limitation on the Congress’s authority to employ military commissions. See