United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2014 Decided June 12, 2015
No. 11-1324
ALI HAMZA AHMAD SULIMAN AL BAHLUL,
PETITIONER
v.
UNITED STATES OF AMERICA,
RESPONDENT
On Petition for Review from the
United States Court of Military Commission Review
Michel Paradis, Counsel, Office of the Chief Defense
Counsel, argued the cause for petitioner. With him on the briefs
were Mary R. McCormick, Counsel, and Major Todd E. Pierce,
JA, U.S. Army (Ret.).
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
2
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, and Joseph Palmer,
Attorney. Francis A. Gilligan, Office of Military Commission,
Lisa O. Moreno and Jeffrey M. Smith, Attorney, U.S.
Department of Justice, entered appearances.
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, 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
3
convictions for material support and solicitation as violative of
the Ex Post Facto Clause of the U.S. Constitution, see Bahlul v.
United States, 767 F.3d 1 (D.C. Cir. 2014), and remanded
Bahlul’s remaining challenges to his conspiracy conviction to
the original panel, see id. at 31. Bahlul contends that his
inchoate conspiracy conviction must be vacated because: (1)
Congress exceeded its authority under Article I, § 8 of the
Constitution by defining crimes triable by military commission
that are not offenses under the international law of war; (2)
Congress violated Article III of the Constitution by vesting
military commissions with jurisdiction to try crimes that are not
offenses under the international law of war; (3) the government
put his thoughts, beliefs, and ideas on trial in violaton of the
First Amendment of the Constitution; and (4) the 2006 MCA
discriminates against aliens in violation of the Equal Protection
component of the Due Process Clause of the Fifth Amendment.
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
(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
4
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. (quoting Buckley v. Valeo, 424
U.S. 1, 122 (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.
5
The Court reaffirmed Schor’s analysis in Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211 (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, No. 13-935 (U.S. May 26, 2015), the Supreme Court
again confirmed that “Schor forbids [] using consent to excuse
an actual violation of Article III.” Id., slip op. at 14 n.10; see id.
at 9, 11–12; accord id. at 12 (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
(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 (2002). The Court cited United States v.
Griffin, 303 U.S. 226, 229 (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 (1991), “[i]t is clear from our opinion in Schor that
we had the analogy to Article III subject-matter jurisdiction in
6
mind.” Id. at 897 (Scalia, J., joined by O’Connor, Kennedy, and
Souter, JJ., concurring in part and concurring in the judgment).
Likewise in Stern v. Marshall, 131 S. Ct. 2594 (2011), the Court
analyzed de novo a structural Article III challenge to a
bankruptcy court’s jurisdiction even though that challenge had
not been raised in the bankruptcy court. Id. at 2601–02,
2608–20. Again in Sharif, the Court reviewed the structural
Article III issue de novo, even though the claim had not been
raised in the bankruptcy court or the district court. See Sharif,
No. 13-935, slip op. at 6, 12–15. We therefore hold that under
Schor’s analysis, Bahlul’s structural challenge under Article III
is not subject to forfeiture.
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 (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 (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.)));
7
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. 11–18. 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, No. 13-935, slip
op. at 9, 11–12, and emphasized that Schor “forbids” waiver of
the latter, id. at 14 n.10. The dissent suggests that Schor’s non-
waiver holding applies only to substantive rights, not arguments.
See Dis. Op. 17–19. 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. 14–17. Each acknowledgment of waivability in the Court’s
opinion refers to the individual right. See Sharif, No. 13-935,
slip op. at 2, 9, 11, 12–13, 17, 19 & n.13. By contrast, each time
the Court discussed the distinction, it made clear that the
structural interest, unlike the individual right, is not subject to
waiver. Id. at 9, 11–12, 14 n.10. The Court explained that it
could “not rely on Sharif’s consent to ‘cure’” an “actual”
separation-of-powers violation, but simply treated his consent as
relevant to the merits question of whether “such violation has
occurred” in the first place. Id. at 14 n.10 (alteration omitted).
8
Our dissenting colleague also misinterprets Sharif to
suggest that structural Article III claims can be forfeited. See
Dis. Op. 15–16. 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, No. 13-935, slip op. at 6, 20. 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 1–2 (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 20, 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. 12–13, 19. 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 25, 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.
9
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. 20–22, 22 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 (1962). To the extent
the dissent insists that this court lacks the power to excuse
forfeiture, see Dis. Op. 19–20; contra Nguyen v. United States,
539 U.S. 69, 80 (2003), it relies on precedent applying Federal
Rule of Criminal Procedure 52(b), which “governs on appeal
from criminal proceedings . . . in district court,” Olano, 507 U.S.
at 731; see Fed. R. Crim. P. 1 Advisory Comm. Note (“[T]hese
rules are intended to govern proceedings in criminal cases triable
in the United States District Court.”), whereas Bahlul is
appealing the decision of the Court of Military Commission
Review, and the statute governing such appeals, see 10 U.S.C. §
950g, contains none of the limitations the dissent labors to
establish. The United States Court of Appeals for the Armed
Forces has rejected the same argument in the court-martial
context, affirming the decision of a lower tribunal to excuse
forfeiture and conducting its own review de novo. See United
States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001); 10 U.S.C. §
950f(d).
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
10
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 (1955); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121
(1866). Article III § 2 requires that “[t]he Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury.” U.S. CONST.
art. III, § 2, cl. 3. The Supreme Court, based on the text of
Article III and its own precedent, has continued to reaffirm that
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 U.S. CONST. art. III, § 1).
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 (1973);
American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511,
546 (1828). It may assign certain criminal prosecutions to courts
11
martial, see Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857),
and military commissions, see Ex parte Quirin, 317 U.S. 1, 46
(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 (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 within the Article III exception for
that type of commission.
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 (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
12
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
13
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 (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 same
vein, the Supreme Court recognized that Congress had
“adopt[ed] the system of common law applied by military
tribunals so far as it should be recognized and deemed applicable
by the courts.” Id. at 30. The Court in Hamdan likewise treated
“the American common law of war” as a source of constraint,
not expansion. 548 U.S. at 613.
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 (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 U.S. CONST.
art. I, § 8, cl. 10). The Court held that the offenses there,
stemming from the commanding general’s breach of duty to
protect civilian populations and prisoners of war against
atrocities committed by troops under his command, were
“recognized in international law as violations of the law of war.”
Id. at 14. To determine the content of the law of war, the Court
looked to international sources, id. at 14–16, and it concluded
that those sources alone “plainly imposed on petitioner . . . an
affirmative duty” that he had violated. Id. at 16. Having
established that the charged offenses were violations of the
international law of war, the Court mentioned two domestic field
14
orders, but only to confirm domestic recognition of the duty
imposed by the Hague and Geneva Conventions. See id. at 16 &
n.3. Again, in Johnson v. Eisentrager, 339 U.S. 763 (1950), the
Supreme Court looked only to international law sources to
determine whether the charged offense, “[b]reach of the terms of
an act of surrender,” was a “war crime.” Id. at 787–88 & n.13.
More recently, in Hamdan, the Supreme Court reaffirmed
Quirin’s principle that the “law of war” means “the body of
international law governing armed conflict.” 548 U.S. at 641
(Kennedy, J., concurring in part); id. at 603 (plurality op.)
(quoting Quirin, 317 U.S. at 30, 35–36).
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 (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
commission because “they are not recognized by our courts as
15
violations of the law of war,” id. at 29. No subsequent Supreme
Court holding suggests that law of war military commissions
may exercise jurisdiction over offenses not recognized by the
“law of war” as defined in Quirin.
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.
16
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 (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 (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,
134 S. Ct. 2550 (2014), the Court defined the scope of the
President’s authority under the Recess Appointments Clause,
U.S. CONST. art. II, § 2, cl. 3, based on a lengthy and dense
historical practice. Upon identifying “thousands of intra-session
recess appointments” and noting that “Presidents since Madison
have made many recess appointments filling vacancies that
initially occurred prior to a recess,” id. at 2562, 2571, the Court
concluded that the Clause authorized those types of
appointments. By contrast, where the Court found only a
handful of instances in which a President had made a recess
appointment during an inter-session recess lasting less than ten
days, the Court held that those recesses were “presumptively too
short to fall within the Clause.” Id. at 2567.
The history on which the government relies fails to
17
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 (plurality op.)), 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,
18
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 (1892); see
Mistretta v. United States, 488 U.S. 361, 401 (1989); Stuart v.
Laird, 5 U.S. (1 Cranch) 299, 309 (1803).
The history of inchoate conspiracy being tried by law of
war military tribunals is thin by comparison and equivocal at
best. The government has identified only a handful of
ambiguous examples, and none in which an inchoate conspiracy
conviction was affirmed by the Judicial Branch. The examples
are unpersuasive in themselves and insufficient to establish a
longstanding historical practice.
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 (plurality op.); 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 (1975)
19
(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. 62–63
(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. 54, 59–61, 67) regarding the jurisdictional basis for
the assassins’ tribunal. Compare id. at 63–64, 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. 64, 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. 64 n.21; the district court described the offense as
“assassination” and only used “conspiracy” in the same terms as
20
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 Tenth
Circuit affirmed the jurisdiction of the military tribunal in view
of the law of war acts of belligerency without addressing the
conspiracy charge. See Colepaugh v. Looney, 235 F.2d 429,
431–32 (10th Cir. 1956). Moreover, in both Quirin and
Colepaugh, the charged conspiracies involved completed
offenses. By contrast, none of the underlying overt acts for
Bahlul’s conspiracy conviction was a law of war offense itself,
and the government declined to charge him with vicarious
liability under Pinkerton v. United States, 328 U.S. 640 (1946),
or with joint criminal enterprise, see Bahlul, 767 F.3d at 38–39
(Rogers, J., concurring in the judgment in part and dissenting)
(citing U.S. Appellee’s Br. to the En Banc Court at 47 (Jul. 10,
2013)).
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
21
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
(plurality op.); 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 (plurality op.).
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. 66 &
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
22
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 a foreign armed force) and the
nature of the offense were both necessary conditions for the
exercise of jurisdiction by a law of war military commission.
See Hamdan, 548 U.S. at 597–98 (plurality op.) (citing W.
Winthrop, MILITARY LAW AND PRECEDENTS, at 836–39); accord
id. at 2826 (Thomas, J., dissenting).
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 v. United States, 411 U.S. 389, 402–04
(1973); Kinsella v. United States ex rel. Singleton, 361 U.S. 234,
236–38 (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,”
U.S. CONST. art. I, § 8, cl. 10, “declare War,” id. § 8, cl. 11,
23
“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 Appellee’s Br. 29–30. In
the government’s view, the war powers support military
jurisdiction over 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, 548
U.S. at 591 (plurality op.); 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 601–02 (plurality op.); 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 Article I, § 8, Cl. 10
24
of the Constitution to ‘define and punish * * * Offenses against
the Law of Nations * * *,’ of which the law of war is a part.” Id.
at 7. Winthrop endorsed this distinction in stating that Civil
War-era legislation subjecting “spies and guerillas” to military
jurisdiction “may be regarded as deriving its authority from” the
Define and Punish Clause. W. Winthrop, MILITARY LAW AND
PRECEDENTS, at 831.
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 (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
B EFORE THE I NTERNATIONAL M ILITARY T RIBUNAL :
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
1
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
25
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 (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 repeated rejection of conspiracy as a
law of war offense, we are puzzled by our dissenting colleague’s
statement that “[t]he international community does recognize
that Bahlul violated the principles of the law of nations,” Dis.
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.
2
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; Statute of the International Tribunal
for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994),
reprinted in 33 I.L.M. 1598, 1602; Statute of the 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, 767 F.3d at 39,
40–41 (Rogers, J., concurring in the judgment in part and dissenting)).
26
Op. 31 (internal quotation marks and italics omitted), and by its
reference to “the international community’s agreement that those
who conspire to commit war crimes can be punished as war
criminals,” id. at 53. There is no such “agreement.” The dissent
offers nothing to support this claim.
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. 34 (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 46 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 45–47; 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 32 (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. 38–43, 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
27
Define and Punish Clause. U.S. CONST. art. I, § 8, cl. 10.
Congress can neither define as piracy a crime that is clearly not
piracy, nor define as a law of nations offense a crime that is
avowedly not a law of nations offense. In other contexts as well,
the Supreme Court has rejected the limitless form of
congressional power the dissent proposes. Cf. City of Boerne v.
Flores, 521 U.S. 507, 529 (1997). Contrary to our dissenting
colleague, international law itself affords no limit because it does
not purport to identify which non-international offenses can and
cannot be treated as domestic war crimes; the dissent points to no
offenses whose trial by military commission are “inconsistent
with” or not “permit[ted]” by international law. Dis. Op. 53, 38
(italics omitted). In urging such a limitation, however, the
dissent does reveal one shared premise: that the content of
international law constrains congressional authority under the
Define and Punish Clause. According to the dissent,
congressional action under the Clause must be “consistent with
international law,” id. at 47, such that Congress may only “track
somewhat ahead of the international community,” id. at 43
(emphasis added). Thus, despite some rhetorical protestations to
the contrary, see id. at 1, 42, 73, the dissent’s disagreement is not
about whether international law constrains congressional
authority, only to what extent.
The dissent’s reliance on Yamashita as support for its
understanding of the Define and Punish Clause, see Dis. Op.
35–37, is misplaced. In Yamashita, the Supreme Court did not
address the nature of Define and Punish Clause authority at all,
because Congress had not defined any specific offenses. See
Yamashita, 327 U.S. at 7. The Court therefore had to undertake
its own analysis of international law, and it concluded that the
Hague and Geneva Conventions “plainly imposed on petitioner”
a duty that he had violated. Id. at 16. It is therefore difficult to
understand how Yamashita affects the type of deference owed to
Congress one way or the other.
28
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.
29
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
30
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,”
U.S. CONST. art. I, § 8, cl. 10, itself makes those offenses
“cognizable by [military] tribunals.” Quirin, 317 U.S. at 28; see
id. at 41 & n.13; Act of Apr. 10, 1806, 2 Stat. 359, 371; 11 Op.
Att’y Gen. at 316; W. Winthrop, MILITARY LAW AND
PRECEDENTS, at 769. Court-martial jurisdiction similarly has a
textual basis in the Constitution, which authorizes Congress to
“make Rules for the Government and Regulation of the land and
naval Forces,” U.S. CONST. art. I, § 8, cl. 14, and exempts those
offenses from trial by jury, see id. amend. V. The sabotage
offense in Quirin was subject to military jurisdiction based on “a
construction of the Constitution which has been followed since
the founding of our government.” 317 U.S. at 41. Military
jurisdiction over conspiracy, by contrast, has neither an express
textual basis nor an established historical tradition.
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
31
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, 361 U.S. at 246–48; Reid, 354 U.S. at 20–21 (plurality
op.); Toth, 350 U.S. at 21–22. The cases on which the
government relies, such as Callanan v. United States, 364 U.S.
587, 593–94 (1961), and United States v. Feola, 420 U.S. 671,
694 (1975), involve criminal conspiracy prosecutions in civil
courts. See Appellee’s Br. 45–46 (also citing United States v.
Price, 265 F.3d 1097, 1107 n.2 (10th Cir. 2001); United States
v. Jannotti, 673 F.2d 578, 591–94 (3d Cir. 1982)).
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 (1866), the four Justices cited by the
dissent, see Dis. Op. 55, 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 (plurality op.); 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 (1952);
see Dis. Op. 55, 58, 61, is likewise misplaced; that case involved
32
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. 60 (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. 73–80.
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 72, 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 (plurality op.). 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. 74, the 2006 MCA provides for
appellate review “only with respect to matters of law, including
33
the sufficiency of the evidence to support the verdict,” 10 U.S.C.
§ 950g(d). Sufficiency review is “sharply limited,” Wright v.
West, 505 U.S. 277, 296 (1992), and “very deferential[],” United
States v. Harrison, 931 F.2d 65, 71 (D.C. Cir. 1991). This is
exactly the type of limited judicial review the Supreme Court has
repeatedly held offends Article III. See Stern, 131 S. Ct. at 2611;
Schor, 478 U.S. at 853; Northern Pipeline, 458 U.S. at 85, 86
n.39 (plurality op.); id. at 91 (Rehnquist, J., concurring in the
judgment); Crowell v. Benson, 285 U.S. 22, 57 (1932). The
dissent pretends otherwise, glossing over the details of Schor and
ignoring Stern and Northern Pipeline. See Dis. Op. 74–76. In
Stern, the Supreme Court faulted the bankruptcy statute for
providing judicial review “only under the usual limited appellate
standards,” which “require[d] marked deference to, among other
things, the [tribunal’s] findings of fact.” 131 S. Ct. at 2611. The
Court reached the same conclusion in Northern Pipeline, 458
U.S. at 85, 86 n.39 (plurality op.); id. at 91 (Rehnquist, J.,
concurring in the judgment). In Schor, the Court noted that
“CFTC orders are [] reviewed under the same ‘weight of the
evidence’ standard sustained in Crowell, rather than the more
deferential [clearly erroneous] standard found lacking in
Northern Pipeline.” 478 U.S. at 853. The “sufficiency of the
evidence” standard in the 2006 MCA is more deferential than the
“usual limited appellate standards” rejected in Stern and the
“clearly erroneous” standard rejected in Northern Pipeline and
Schor. Rather than addressing these holdings directly, the
dissent relies on inapposite precedent involving (1) “adjunct”
fact-finders within Article III courts, see Dis. Op. 75 (citing
Crowell, 285 U.S. at 51); see also Stern, 131 S. Ct. at 2619;
Northern Pipeline, 458 U.S. at 78 (plurality op.), (2) factual
review in appeals from state courts and Article III district courts,
see Dis. Op. 75–76 (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979); The Francis Wright, 105 U.S. 381, 386 (1881)),
and (3) cases within the “public rights” exception to Article III,
where there is no reason to apply a balancing analysis, see Dis.
34
Op. 76 (citing Estep v. United States, 327 U.S. 114 (1946)). No
Article III issue was raised or addressed in Estep or Jackson.
Thus, the dissent’s “most important[]” factor — appellate review
for legal error only, id. at 74 — is one the Supreme Court has
expressly foreclosed.
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, No. 13-935, slip
op. at 12. 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, No. 13-935, slip op. at 9; see id. at 14 n.10.
Subsequent decisions by the Supreme Court involving the
Federal Magistrates Act “reiterated the importance of consent to
the constitutional analysis.” Id. at 10. And in both Stern and
Northern Pipeline, compliance with Article III “turned on”
whether the litigant “truly consent[ed]” to the adjudication. Id.
at 15 (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. 74. 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, No. 13-935,
slip op. at 13 (internal quotation marks omitted); see id. at 3–4.
35
The Court expressly conditioned its holding on this level of
“control by the Article III courts.” Id. at 12, 15. 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. 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 (1989), that
the program would be “confounded” without the ability to
adjudicate that claim. Schor, 478 U.S. at 856; see Sharif, No. 13-
935, slip op. at 13; Stern, 131 S. Ct. at 2613–14; Thomas v.
Union Carbide Agric. Products Co., 473 U.S. 568, 593–94
(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
(plurality op.)); see Schor, 478 U.S. at 853, 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, 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 (2001). The
36
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 judgements, 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 (internal quotation
marks omitted). The Supreme Court unanimously agreed in
Stern that “Congress may not vest in a non-Article III court the
power to adjudicate, render final judgment, and issue binding
orders in [an adjudication of private rights], without consent of
the litigants, and subject only to ordinary appellate review.” 131
S. Ct. at 2624 (Breyer, J., dissenting); id. at 2615 (majority op.);
see Thomas, 473 U.S. at 584. The dissent struggles,
unpersuasively, to avoid this conclusion. It suggests that military
commissions somehow do not raise the same separation-of-
powers concerns as bankruptcy courts, see Dis. Op. 79; contra
Hamdan, 456 U.S. at 638 (Kennedy, J., concurring in part), even
though bankruptcy judges are appointed, supervised, and
removable by Article III courts, see Sharif, No. 13-935, slip op.
at 13; Peretz v. United States, 501 U.S. 923, 938–39 (1991). It
points to the established Article III exception for military
commissions, see Dis. Op. 79–80, even though the analysis in
Schor is premised on the adjudication being outside of such an
exception, as the dissent elsewhere acknowledges, see id. at 71,
37
73, 80. The government, unsurprisingly, has barely presented
any balancing analysis, see Appellee’s Br. 51.
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. III, § 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
38
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.
1
TATEL, Circuit Judge, concurring: Although I agree that
al Bahlul’s conviction runs afoul of Article III of the
Constitution, I write separately to explain why, having joined
the en banc Court in upholding that conviction, I now join an
opinion that invalidates it. I also wish to draw out a few points
that are especially relevant to the separation-of-powers
questions this case presents.
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, 767 F.3d 1, 18 (D.C. Cir. 2014).
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-
2
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, 354 U.S. 1,
21 (1957) (“Every extension of military jurisdiction is an
encroachment on the jurisdiction of civil courts . . . .”), and
the Supreme Court held in Commodities Futures Trading
Commission v. Schor that structural claims cannot be waived
or forfeited, see 478 U.S. 833, 850–51 (1986) (“To the extent
that [a] structural principle is implicated in a given case, the
parties cannot by consent cure the constitutional difficulty.”).
This Court followed suit in Kuretski v. Commissioner of
Internal Revenue Service, holding that “the Supreme Court
has recognized an exception” to the “general rule” that a party
may forfeit an argument it fails to raise below: we may
nonetheless “hear ‘a constitutional challenge’ . . . if the
‘alleged defect . . . goes to the validity of the . . .
proceeding.’” 755 F.3d 929, 936 (D.C. Cir. 2014) (quoting
Freytag v. Commissioner of Internal Revenue Service, 501
U.S. 868, 879 (1991)). The Supreme Court, moreover,
recently reaffirmed Schor’s holding in Wellness International
Network, Ltd. v. Sharif: “a litigant’s waiver of his ‘personal
right’ to an Article III court is not always dispositive[;] . . .
[t]o the extent that [a] structural principle is implicated in a
given case . . . the parties cannot by consent cure the
constitutional difficulty.” 575 U.S. __ (2015), slip op. at 9
(quoting Schor, 478 U.S. at 850–51); see id., dissenting op. at
12 (Roberts, C.J.) (“nobody disputes that Schor forbids a
litigant from consenting to a constitutional violation when the
structural component of Article III is implicated”) (internal
quotation marks omitted); Op. at 6–7. If, as the dissent argues,
the Court instead intended to hold that structural claims are
now forfeitable, see Dissenting Op. 14–15, thus overruling
3
decades of precedent and requiring us to depart from our own
case law, then I suspect it would have made that point clear.
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, 131 S. Ct. 2594, 2620 (2011) (emphasis added).
The Supreme Court has ruled time and again that this mandate
is essentially ironclad, allowing exceptions only where
“delineated in [the Court’s] precedents, rooted in history and
the Constitution.” Northern Pipeline Construction Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 74 (1982). One such
exception—the only one relevant here—permits Congress to
assign certain criminal cases to military commissions. See Al
Bahlul, 767 F.3d at 7. The question in this case is whether
conspiracy to commit war crimes falls within the military-
commission exception to Article III as articulated by the
Supreme Court.
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.
4
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 (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;
Op. at 10–11.
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 nations, and more
particularly the law of war, are cognizable by such tribunals.”
Id. at 28 (emphasis added); see also id. at 29 (calling the law
of war a “branch of international law”). The Court made the
5
point even clearer in Yamashita: military-commission
authority derives from “the Law of Nations . . . of which the
law of war is a part.” 327 U.S. 1, 7 (1946) (alteration in
original) (emphasis added); see also Op. at 12–14.
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, 548 U.S. at 689
(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
6
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 (Kennedy, J.,
concurring) (quoting Quirin, 317 U.S. at 28) (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
(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 (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 (quoting Quirin, 317 U.S.
at 30) (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 violation of the law of war because it was
treated as such “both in this country and internationally,”
Justice Stevens was saying that, at a minimum, an act must
violate the international law of war before Congress can grant
military commissions jurisdiction over that crime. In other
words, Justice Stevens did not conclude that domestic law
alone could support military-commission jurisdiction over
conspiracy. This interpretation of Justice Stevens’s opinion
seems especially obvious given that the three Justices who
7
signed onto his opinion also joined Justice Kennedy’s
statement that the law of war “is . . . international law,” id. at
641 (Kennedy, J., concurring), and not Justice Thomas’s
opinion to the contrary.
Thus, although the Court held in Hamdan 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,
458 U.S. at 74, and that the Schor balancing factors favor al
Bahlul, see Op. at 33–36, this “inferior” court is without
authority to go beyond the Supreme Court’s clear signal, sent
first in Quirin and repeated in Yamashita, that military-
commission jurisdiction is limited to crimes that violate the
international law of war. See United States v. Dorcely, 454
F.3d 366, 375 (D.C. Cir. 2006) (the Supreme Court’s
“carefully considered language . . . must be treated as
authoritative”). Instead, we must leave it to the Supreme
Court to take that step.
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 19–26. 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 III’s critical protections. The
Supreme Court rejected that view of Article I in Northern
8
Pipeline. There, the Court concluded that Congress had no
authority to establish bankruptcy courts entirely outside of
Article III’s reach because any limit on such “broad
legislative discretion” would prove “wholly illusory.”
Northern Pipeline, 458 U.S. at 73–74. Like the bankruptcy
scheme the Court rejected in Northern Pipeline, the
government’s view of Article I would “effectively eviscerate
[Article III’s] guarantee of an independent Judicial Branch of
the Federal Government.” Id. at 74.
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 30–31. 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.
Despite the government’s protestations, moreover, this
court’s holding will not “inappropriately restrict” the nation’s
ability to ensure that those who conspire to commit terrorism
are appropriately punished. After all, the government can
always fall back on the apparatus it has used to try federal
crimes for more than two centuries: the federal courts. See 18
U.S.C. § 371 (criminalizing conspiracy). Federal courts hand
down thousands of conspiracy convictions each year, on
everything from gun-running to financial fraud to, most
important here, terrorism. See CENTER ON LAW AND
9
SECURITY, NEW YORK UNIVERSITY SCHOOL OF LAW,
TERRORIST TRIAL REPORT CARD: SEPTEMBER 11, 2001-
SEPTEMBER 11, 2011 at 2, 7, table 1, available at
http://goo.gl/Ks3Okc (since September 11, 2001, prosecutors
have prevailed in almost 200 “jihadist-related” terrorism and
national-security cases in federal courts); id. at 13 (“the most
commonly charged crimes” have included violations of 18
U.S.C. § 371, for “general criminal conspiracy”). For
instance, Zacarias Moussaoui—the potential 20th 9/11
hijacker—pled guilty in federal court to six counts of
conspiracy for his role in planning the 2001 attacks, see
United States v. Moussaoui, 591 F.3d 263, 266 (4th Cir.
2010); a federal jury convicted Wadih el Hage, Mohamed
Odeh, and Mohamed al Owhali for conspiring to bomb the
American embassies in Kenya and Tanzania, see In re
Terrorist Bombings of U.S. Embassies in East Africa, 552
F.3d 93, 107 (2d Cir. 2008); and Ahmed Abu Khattalah, who
stands accused of conspiring to attack the American
diplomatic mission in Benghazi, Libya, awaits trial in this
very courthouse, see Superseding Indictment, United States v.
Ahmed Abu Khattala, No. 14-cr-141 (D.D.C. Oct. 14, 2014),
ECF No. 19.
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
10
those convictions—Khan’s, al Darbi’s, and al Qosi’s—remain
on the books and unchallenged.
1
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 (2008). Justice Jackson famously
identified three categories of governmental action.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–
38 (1952) (Jackson, J., concurring). When the President and
the Congress disagree (Category 3), their powers are
subtractive. Id. at 637–38. 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 (quoting Mackenzie v. Hare, 239 U.S. 299, 311 (1915))
(emphasis omitted).
Yet, according to my colleagues, Justice Jackson didn’t
get the math quite right. He apparently failed to factor in an
additional constraint on the political branches’ combined war
powers: international law. My colleagues contend—as a
matter of constitutional law, not simple comity—that the
Congress cannot authorize military-commission trials unless
the international community agrees, jot and tittle, that the
offense in question violates the law of war. And the content
of international law is to be determined by—who else?—the
Judiciary, with little or no deference to the political branches.
Contra Rostker v. Goldberg, 453 U.S. 57, 65–66 (1981)
(“perhaps in no other area has the Court accorded Congress
greater deference” than “in the context of Congress’ authority
over national defense and military affairs”). But the
definition and applicability of international law is, in large
part, a political determination, see Finzer v. Barry, 798 F.2d
2
1450, 1459–60 (D.C. Cir. 1986), aff’d in part, rev’d in part
sub nom. Boos v. Barry, 485 U.S. 312 (1988), and the
decision to try an alien enemy combatant by military
commission is part and parcel of waging war, see Application
of Yamashita, 327 U.S. 1, 11–12 (1946). The majority
opinion thereby draws us into a thicket, one in which our
“lack of competence . . . is marked,” Rostker, 453 U.S. at 65,
our democratic unaccountability glaring, Gilligan v. Morgan,
413 U.S. 1, 10 (1973), and the ramifications of our actions
unpredictable, Holder v. Humanitarian Law Project, 561 U.S.
1, 34 (2010) (“most federal judges” do not “begin the day
with briefings that may describe new and serious threats to
our Nation and its people”).
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-
3
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 Military
Commissions Act of 2006 (2006 MCA), Pub. L. No. 109-366,
120 Stat. 2600.
Accordingly, I must dissent.
I. Standard of Review ................................................................3
II. The Constitutional Challenges ...........................................29
A. Article I .........................................................................30
1. Define and Punish Clause.......................................32
2. Necessary and Proper Clause .................................48
3. Broader War Powers ...............................................53
a. Supreme Court Precedent .................................55
b. Winthrop’s Treatise ..........................................59
c. Historical Practice .............................................62
B. Article III.......................................................................68
1. Judicial Power Clause .............................................68
2. Criminal Jury Clause ..............................................80
C. Equal Protection & First Amendment .........................85
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.
4
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, 187 F.3d 672, 674 (D.C. Cir. 1999). But he
failed to do so.
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
5
substantive challenge to his conviction. See Puckett v. United
States, 556 U.S. 129, 134 (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; 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 intentional withholding of an
objection by a party to be raised on appeal only if he loses at
trial.” Bahlul, 767 F.3d at 9 (citing, inter alia, Wainwright v.
Sykes, 433 U.S. 72, 89 (1977)). Second, the rule promotes
judicial efficiency by giving the trial court the first
opportunity to correct errors, Puckett, 556 U.S. at 134, and by
ensuring that “litigation remains, to the extent possible, an
orderly . . . winnowing process,” Exxon Shipping Co. v.
Baker, 554 U.S. 471, 487 n.6 (2008) (quotation marks
omitted). See also Wainwright, 433 U.S. at 90
(contemporaneous-objection rule makes trial “main event”
rather than mere “tryout on the road”).
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, FED. R. CRIM. P. 52(b); 10 U.S.C.
§ 950a(a)). The appellate court automatically excuses the
defendant’s forfeiture but reviews his argument under a more
6
exacting standard. See United States v. Olano, 507 U.S. 725,
732 (1993) (“[t]he appellate court must consider the error”
but it “may correct the error . . . only if” it is plain (first
emphasis added)). In this way, the plain-error standard
“tempers the blow” of the contemporaneous-objection rule for
a criminal defendant. United States v. Young, 470 U.S. 1, 15
(1985). But it also “reflects a careful balancing of our need to
encourage all trial participants to seek a fair and accurate trial
the first time around against our insistence that obvious
injustice be promptly redressed.” United States v. Frady, 456
U.S. 152, 163 (1982).
The plain-error standard applies to “all” forfeited
arguments in a criminal case. Puckett, 556 U.S. at 136;
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 (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 . . .
1
Most of Bahlul’s arguments involve personal constitutional rights that
are indisputably forfeitable. See Peretz v. United States, 501 U.S. 923,
936 (1991) (“[t]he most basic rights of criminal defendants” can be
forfeited); Yakus v. United States, 321 U.S. 414, 444 (1944) (“No
procedural principle is more familiar to this Court than that a
constitutional right may be forfeited . . . .”); see also, e.g., Johnson v.
United States, 520 U.S. 461, 466 (1997) (right to petit jury); United States
v. Broxton, 926 F.2d 1180, 1183 (D.C. Cir. 1991) (equal protection);
United States v. Accardi, 669 F.3d 340, 343–44 (D.C. Cir. 2012) (First
Amendment).
7
to be forfeited, it should only refrain from doing so . . . when
the alleged error is jurisdictional”). 2 Subject-matter
jurisdiction “can never be forfeited” because “it involves a
court’s power to hear a case.” Cotton, 535 U.S. at 630
(emphasis added); see also United States v. Baucum, 80 F.3d
539, 540 (D.C. Cir. 1996).
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, 767 F.3d at 10 n.6. Granted, Bahlul
challenges this jurisdictional grant as beyond the Congress’s
authority under the Define and Punish Clause. A challenge to
the constitutionality of a jurisdictional statute, however, is not
itself jurisdictional. See United States v. Williams, 341 U.S.
58, 66 (1951) (“Even the unconstitutionality of the statute
2
Nguyen v. United States, 539 U.S. 69 (2003), and Glidden Co. v.
Zdanok, 370 U.S. 530 (1962) (plurality), are not to the contrary. In both
cases, the criminal defendants complained that a non–Article III judge sat
by designation on the court that reviewed or issued their respective
convictions. Nguyen, 539 U.S. at 72 (chief judge of District Court for
Northern Mariana Islands); Glidden, 370 U.S. at 532 (retired judge of
Court of Customs and Patent Appeals). Although the defendants failed to
timely raise their objections, the Supreme Court nevertheless declined to
apply the plain-error standard. Nguyen, 539 U.S. at 80–81; Glidden, 370
U.S. at 535–36. Both Nguyen and Glidden, however, fit comfortably
within the “jurisdictional” exception to plain-error review. In Glidden, the
plurality declared that it was “treat[ing] the alleged defect as
‘jurisdictional.’ ” 370 U.S. at 536. And in Nguyen, the Court repeatedly
described the alleged error as a challenge to the court’s “authority.” 539
U.S. at 79–80; see also Rivera v. Illinois, 556 U.S. 148, 161 (2009)
(unanimous) (describing Nguyen as case where court of appeals “lacked
statutory authority to adjudicate the controversy” (emphasis added)).
8
under which the proceeding is brought does not oust a court
of jurisdiction.”); United States v. Drew, 200 F.3d 871, 876
(D.C. Cir. 2000) (noting “the error in labeling a challenge to
the constitutionality of a statute a jurisdictional issue”);
Cotton, 535 U.S. at 630 (same); Baucum, 80 F.3d at 540–41
(because every federal statute enjoys “a presumption of
validity,” the “assertion of a constitutional defect does not
work to divest th[e] court of its original jurisdiction”).
Bahlul’s Article I Define and Punish Clause argument is no
more jurisdictional than his Article I Ex Post Facto Clause
argument, which the en banc court reviewed for plain error.
See Bahlul, 767 F.3d at 10 n.6 (“The question whether [the
2006 MCA] is unconstitutional does not involve the court[’s]
statutory or constitutional power to adjudicate the case.”
(quotation marks omitted)); see also, e.g., United States v.
Nueci-Peña, 711 F.3d 191, 197 (1st Cir. 2013) (reviewing
Define and Punish Clause challenge for plain error); United
States v. Urena, 140 F. App’x 879, 881 (11th Cir. 2005)
(same).
Bahlul’s challenge under the Judicial Power Clause of
Article III is also forfeitable. 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,
341 U.S. at 66; Bahlul, 767 F.3d at 10 n.6; Baucum, 80 F.3d
at 540–41. The “Article III” label changes nothing; by this
Clause, Article III restricts the Congress’s power, not the
power of the courts or military commissions. See CFTC v.
Schor, 478 U.S. 833, 850 (1986) (“Article III, § 1 . . . bar[s]
congressional attempts to transfer jurisdiction to non-Article
III tribunals” (emphasis added) (quotation marks and
alterations omitted)). If a Judicial Power Clause challenge
were in fact jurisdictional, a court would be required to raise it
sua sponte each time it reviews a decision of a non–Article III
9
tribunal (e.g., agency adjudicator, magistrate judge,
bankruptcy court). See Baucum, 80 F.3d at 541. Courts, of
course, do not do this because they “would have to assure
themselves of a statute’s validity as a threshold matter,”
“run[ning] afoul of established Supreme Court precedent
declining to address constitutional questions not put in issue
by the parties.” Id.; see also, e.g., Granfinanciera, S.A. v.
Nordberg, 492 U.S. 33, 64 n.19 (1989) (declining to reach
Article III issue because “however helpful it might be for us
to adjudge every . . . constitutional issue presented by [a
statute], we cannot properly reach out and decide matters not
before us”); United States v. Spector, 343 U.S. 169, 172
(1952) (declining to consider sua sponte Article III Judicial
Power Clause issue); Benjamin v. Jacobson, 172 F.3d 144,
163 n.** (2d Cir. 1999) (en banc) (same); In re Constr.
Equip. Co., 665 F.3d 1254, 1256 n.3 (Fed. Cir. 2011) (same).
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. 3–9; Concur. Op. 2. 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
constitutional courts, and thereby preventing the
encroachment or aggrandizement of one branch at
10
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.
478 U.S. at 850–51 (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
3
My colleagues note that the Government “conceded” their reading of
Schor is correct. Maj. Op. 6. 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, 767 F.3d
at 10 n.5. The Government again asked us to review Bahlul’s Article III
challenge for plain error. See Resp’t’s Br. 49–52, 60. And, even at oral
argument, the Government objected to the notion that Bahlul was raising a
nonforfeitable structural challenge—hardly a concession of the point. See
Oral Arg. Recording 30:47 (“I do not acknowledge that he [Bahlul] was
raising it [the structural Article III argument].”).
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 (1942) (“The proper administration of the 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
11
Put simply, Schor is not a case about forfeitability at all.
As already discussed, the only nonforfeitable argument is
subject-matter jurisdiction. See Cotton, 535 U.S. at 631;
David, 96 F.3d at 1482; accord Freytag v. Comm’r, 501 U.S.
868, 893–94 (1991) (Scalia, J., concurring) (“A party forfeits
the right to advance on appeal a nonjurisdictional claim,
structural or otherwise, that he fails to raise at trial.”
(emphasis added)). Schor did not hold that a Judicial Power
Clause challenge is “jurisdictional.” Granted, the Court said
that “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.”
Schor, 478 U.S. at 851 (emphasis added). In a later case, four
Justices speculated that Schor drew an “analogy” between the
Judicial Power Clause and subject-matter jurisdiction.
Freytag, 501 U.S. at 897 (Scalia, J., concurring). But an
issue’s analogy to subject-matter jurisdiction does not make it
jurisdictional; in fact, the very need for analogy suggests that
the concepts are different. See William Fleming, Vocabulary
of Philosophy, in A VOCABULARY OF THE PHILOSOPHICAL
SCIENCES 21 (1878) (“Analogy implies a difference in sort,
and not merely in degree . . . .”); see also NFIB v. Sebelius,
132 S. Ct. 2566, 2656 n.6 (2012) (Scalia, Kennedy, Thomas,
Alito, JJ., dissenting) (“That the penalty is to be ‘assessed and
collected in the same manner as taxes’ refutes the proposition
that it is a tax . . . .” (emphases in original)). And the analogy
is a poor one at that. Because there is nothing jurisdictional
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); Nueci-Pena, 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) (“[N]o party has the power to control our
standard of review.” (emphasis in original)).
12
about a challenge to the Congress’s constitutional authority to
enact a statute, see Williams, 341 U.S. at 66; Bahlul, 767 F.3d
at 10 n.6; Baucum, 80 F.3d at 540–41, a one-sentence analogy
is far too slim a reed to conclude that Schor carved out a
“judicial power” exception to the Court’s earlier—and
consistent—precedent on the forfeitability of constitutional
arguments. See, e.g., Williams, 341 U.S. at 66; Yakus, 321
U.S. at 444. See generally Shalala v. Ill. Council on Long
Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not
normally overturn, or so dramatically limit, earlier authority
sub silentio.”).
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 Farms, 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 (1995) (No. 93-
1121), 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 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
13
limitations are at issue, notions of consent and
waiver cannot be dispositive,” id., at 851 (emphasis
added). See also Freytag v. Commissioner, 501 U.S.
868, 878–879 (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).
Plaut, 514 U.S. at 231–32 (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, No. 13-935, 2015 WL
2456619 (U.S. May 26, 2015); In re BP RE, L.P., 735 F.3d
279, 286–87 (5th Cir. 2013); Waldman v. Stone, 698 F.3d
4
My colleagues also cite Stern v. Marshall, 131 S. Ct. 2594 (2011), to
support their reading of Schor. Maj. Op. 6. But Stern said nothing about
the forfeitability of Judicial Power Clause challenges. In Stern, the
Supreme Court reviewed de novo the respondent’s Judicial Power Clause
challenge to the bankruptcy court’s adjudication of a state-law
counterclaim. See id. at 2608. There is no indication, however, that the
respondent ever forfeited this argument. Although he did forfeit his
challenge to the bankruptcy court’s adjudication of his defamation claim,
id. at 2606, he “did not truly consent to” its adjudication of the petitioner’s
tortious-interference counterclaim, id. at 2614. And, in fact, the
respondent had earlier objected to the bankruptcy court’s jurisdiction of
the counterclaim. See id. at 2601–02.
14
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, 134
S. Ct. 2165 (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 Article III. 755 F.3d 929, 937 (D.C. Cir. 2014)
(emphasis added); see also id. at 938 (citing Waldman). No
matter the correctness vel non of these cases when they were
decided, their continued validity has been fatally undermined
by two very recent Supreme Court decisions.
In B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct.
1293 (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 extent . . . there could be a
meritorious constitutional objection, it is not before us.”). In
other words, the respondent forfeited the Article III
argument—a holding that plainly contradicts the notion that
Judicial Power Clause challenges are nonforfeitable.
Significantly, the Court relied on Plaut to support its
forfeiture determination. See id. at 1304 (citing Plaut, 514
U.S. at 231–32).
In Wellness International Network, Ltd. v. Sharif, No. 13-
935 (U.S. May 26, 2015), the Supreme Court made its view
on the forfeitability of a Judicial Power Clause challenge as
15
plain as day. The main holding of Sharif is that a party’s
consent eliminates the Article III problem presented by
bankruptcy court adjudication. See No. 13-935, slip op. at 2.
But, near the end of the opinion, the Court also indicated that
Judicial Power Clause challenges are forfeitable. In the
decision under review, the Seventh Circuit had held that the
“structural interests” protected by the Judicial Power Clause
cannot be forfeited. See id. at 7 & n.5 (quoting Sharif, 727
F.3d at 771). The Supreme Court reversed that decision in
toto. See id. at 8, 20. In fact, the Court remanded the case to
the Seventh Circuit with instructions to conduct the
“factbound analysis” necessary to determine “whether . . .
Sharif forfeited his Stern argument below.” Id. at 20. [A
“Stern argument”—it should go without saying, contra Maj.
Op. 7–8—is a “structural” Judicial Power Clause challenge.
See Arkison, 134 S. Ct. at 2170 (“Stern claims” are “claim[s]
designated for final adjudication in the bankruptcy court . . .
but prohibited from proceeding in that way as a constitutional
matter” because “Article III prohibits Congress from vesting a
bankruptcy court with th[at] authority” (emphasis added)).]
One Justice in Sharif went further, concluding that remand
was unnecessary because the Judicial Power Clause challenge
was indisputably forfeited:
[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 2 (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
16
remanded the forfeiture question if the Seventh Circuit were
right all along that a “structural” Judicial Power Clause
challenge cannot be forfeited. 5 Accordingly, 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. 5.
Notwithstanding the charge that I “misinterpret[]” Sharif,
Maj. Op. 8, 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. 5, 6, 8
5
My colleagues emphasize that in Sharif the Supreme Court reviewed the
Article III question de novo. Maj. Op. 6, 8. 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 No. 13-935,
slip op. at 20; Pet’r’s Wellness Int’l, et al. Br. 47–48, 2014 WL 4467356
(U.S. 2014) (arguing that “litigants may waive or forfeit constitutional
rights that implicate structural concerns”); Pet’r’s Wellness Int’l, et al.
Reply Br. 26, 2014 WL 7272803 (U.S. 2014) (again arguing that “Sharif
forfeited his Stern argument” (quotation marks and brackets omitted)). In
other words, the Supreme Court answered an important question of law de
novo but still allowed for the prospect that Sharif would ultimately lose his
appeal because he forfeited his structural Article III challenge. My
colleagues’ decision to vacate Bahlul’s conviction in fact contradicts,
rather 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. 28.
17
(citing Sharif, No. 13-935, slip op. at 9, 11–12, 14 n.10; id.,
dissenting op. at 12 (Roberts, C.J.)). These passages,
however, have nothing to do with appellate procedure; they
instead speak to the merits.
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. No. 13-935, slip op. at 9, 14
n.10 (quoting Schor, 478 U.S. at 851 (emphasis added)); id,
dissenting op.. at 12 (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., slip op. at 14 n.10; see also id., dissenting
op. at 2 (Thomas, J.) (“Although it may not authorize 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., slip op. at 9; Schor, 478 U.S. at 849–
51. 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, No. 13-935, slip op. at 14 n.10; see also
Schor, 478 U.S. at 851 (“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.” (emphasis
added)). Sharif, however, clarified that consent can be one
factor that keeps a violation of Article III from occurring, so
long as it is not the only factor. See No. 13-935, slip op. at 14
n.10 (“[C]onsent remains highly relevant when determining
. . . whether a particular adjudication in fact raises
18
constitutional concerns . . . . [C]onsent shows, in part, why no
[structural] violation has occurred.” (citation omitted)). This
is an important holding: it clarifies the role of consent in the
application of the Schor balancing test. Yet it says nothing
about forfeiture, appellate procedure, preservation of
arguments, standards of review or the like. It pertains only to
the merits, i.e. the question whether Article III is in fact
violated. 6
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
6
Even if my colleagues were correct that Sharif’s discussion of “waiver”
refers to forfeiture, they could not reconcile the Court’s repeated
admonitions that structural Article III challenges can, in fact, be waived.
See, e.g., Sharif, No. 13-935, slip op. at 16–17 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 (emphasis added) (alteration in
original))); id. at 12–13 (“[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
17 (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.”).
19
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, No. 13-935, slip op. at 18–19. 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.
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. 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; Schor, 478 U.S. at 851; Glidden,
370 U.S. at 536–37 (plurality); Kuretski, 755 F.3d at 936–37.
But see Freytag, 501 U.S. at 892–901 (Scalia, J., concurring)
(explaining why “structural” constitutional challenges should
not receive special treatment).
20
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 (2010); Puckett, 556 U.S. at 134–43; Cotton, 535 U.S.
at 629–34; Johnson, 520 U.S. at 466–70; Olano, 507 U.S. at
731–41; Young, 470 U.S. at 14–16 & nn.12, 14; Frady, 456
U.S. at 163 & nn.13–14. In criminal cases, the plain-error
standard operates as a “limitation on appellate-court
authority.” Puckett, 556 U.S. at 134; see also United States v.
Farrell, 672 F.3d 27, 36 (1st Cir. 2012). It “strictly
circumscribe[s]” our ability to remedy forfeited errors,
Puckett, 556 U.S. at 134; we “must” review them for plain
error only. Marcus, 560 U.S. at 266; United States v. Brown,
508 F.3d 1066, 1076 (D.C. Cir. 2007). The plain-error
standard strikes a “careful balance” between furthering the
purposes of the contemporaneous-objection rule and
remedying obvious injustice. Puckett, 556 U.S. at 135; see
also Johnson, 520 U.S. at 466; Young, 470 U.S. at 15. “Any
unwarranted extension” of the standard “skew[s]” this
balance, Young, 470 U.S. at 15, and “the creation of an
unjustified exception”—like the one Bahlul requests—is
“even less appropriate.” Puckett, 556 U.S. at 136 (alteration
omitted); see also Young, 470 U.S. at 16 n.14 (criticizing
practice of creating “per se” exceptions to plain-error review).
Courts apply plain-error review in criminal cases
notwithstanding “the seriousness of the error claimed.”
Johnson, 520 U.S. at 466; 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” Article III challenge in a criminal case, four
Justices thought it should be reviewed for plain error—Schor
notwithstanding. See Nguyen, 539 U.S. at 88 (Rehnquist,
21
C.J., dissenting). 7 Likewise, our sister circuits frequently
review Judicial Power Clause challenges in criminal cases for
plain error only. See, e.g., United States v. Shultz, 733 F.3d
616, 621 (6th Cir. 2013); United States v. Woodard, 387 F.3d
1329, 1331, 1333 (11th Cir. 2004); United States v. Bishop,
603 F.3d 279, 280 (5th Cir. 2010); United States v. Tejeda,
476 F.3d 471, 474 (7th Cir. 2007); United States v. Torres,
258 F.3d 791, 794 (8th Cir. 2001); United States v. Mike, 632
F.3d 686, 691–92, 700 (10th Cir. 2011); United States v.
Nash, 438 F.3d 1302, 1304 (11th Cir. 2006); United States v.
Daniels, 182 F.3d 910 (4th Cir. 1999) (table).
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. 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 (emphasis added). That rationale is
“especially compelling” in criminal cases. Cobbledick v.
7
The majority in Nguyen did not reach the Article III question because it
decided the case on an alternate statutory ground. See 539 U.S. at 81.
22
United States, 309 U.S. 323, 325 (1940); see also Di Bella v.
United States, 369 U.S. 121, 124 (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 of much of its deterrent effect.” Teague v. Lane, 489
U.S. 288, 309 (1989); see also id. (“No one, not criminal
defendants, not the judicial system, not society as a whole is
benefited by a judgment providing that a man shall tentatively
go to jail today, but tomorrow and every day thereafter his
continued incarceration shall be subject to fresh litigation.”);
Young, 470 U.S. at 16 (“To turn a criminal trial into a quest
for error no more promotes the ends of justice than to
acquiesce in low standards of criminal prosecution.”). In
short, plain-error review reconciles multiple competing
concerns in criminal cases and provides a rule to
accommodate them ex ante. Absent jurisdictional error, we
cannot do otherwise than apply this venerable standard. 8
8
None of this analysis—contrary to my colleagues’ contention, Maj. Op.
9—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, 767 F.3d at 9 n.4 (citing
Salazar, 602 F.3d at 437). The plain-error standard strikes a delicate
“balance” that is irrevocably “skew[ed]” whenever courts exempt litigants
from its requirements. Salazar, 602 F.3d at 440. The Supreme Court’s
decisions to this effect bind us no matter the doctrinal source of the plain-
error standard. See Olano, 507 U.S. at 731 (noting that Rule 52(b) is
merely “a restatement of existing law” (quoting FED. R. CRIM. P. 52(b),
advisory committee’s note (1944))).
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
23
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, 72 M.J. 191, 197 n.7 (C.A.A.F. 2013); see also
id. at 196 (“To establish plain error, an appellant has the burden to
demonstrate: (1) there was error; (2) the error was plain or obvious; and
(3) the error materially prejudiced a substantial right of the accused.”).
Given the CAAF’s interpretive gloss on the UCMJ and the Congress’s use
of identical language in the 2009 MCA, the plain-error standard applies
with the same statutory force here. See 10 U.S.C. § 948b(c) (“judicial
construction and application” of UCMJ is “instructive” in interpreting
2009 MCA); Sekhar v. United States, 133 S. Ct. 2720, 2724 (2013) (“[I]f a
word is obviously transplanted from another legal source, whether the
common law or other legislation, it brings the old soil with it.”); Bragdon
v. Abbott, 524 U.S. 624, 645 (1998) (“When administrative and judicial
interpretations have settled the meaning of an existing statutory provision,
repetition of the same language in a new statute indicates, as a general
matter, the intent to incorporate its administrative and judicial
interpretations as well.”). The sources cited by my colleagues, Maj. Op. 9,
are inapposite because they deal with review by the Service Courts of
Criminal Appeals (CCAs) and CMCR, rather than the “much more
limited” review of the CAAF and this Court. United States v. Claxton, 32
M.J. 159, 162 (CMA 1991); see also United States v. Powell, 49 M.J. 460,
463 (CAAF 1998) (“[CCAs] enjoy much broader appellate authority than
civilian intermediate courts or our Court.”); United States v. Riley, 47 M.J.
276, 281 (CAAF 1997) (Gierke, J., concurring) (whereas “a [CCA] may
take notice of errors of law, whether or not they were preserved by timely
objection[, the CAAF] is constrained by the rules of waiver and the
doctrine of plain error”). Indeed, the CAAF applies plain error even when
the CCA reviewed a forfeited issue de novo. See, e.g., Riley, 47 M.J. at
279–80 (majority op.); United States v. Goings, 72 M.J. 202, 203–04
(CAAF 2013); Tunstall, 72 M.J. at 193–96; United States v. Sweeney, 70
M.J. 296, 300 n.8, 304 (CAAF 2011).
24
Second, even if we could bypass the plain-error standard
and review Bahlul’s Article III challenge de novo, I would
follow the en banc court and decline to do so here.
Preliminarily, my colleagues are wrong to suggest that the
Supreme Court has “instructed that courts should excuse
waivers of Article III structural claims.” Maj. Op. 8
(emphasis added). Quite the contrary: it is a “rare” case in
which we entertain a forfeited Article III argument. Plaut,
514 U.S. at 232 (quoting Freytag, 501 U.S. at 878–79).
Enforcing the traditional rules of waiver and forfeiture in the
context of a Judicial Power Clause challenge, as in other
contexts, serves the important interests of “increasing judicial
efficiency and checking gamesmanship.” Sharif, No. 13-935,
slip op. at 19. Moreover, several factors unique to Bahlul’s
case make it a particularly inappropriate occasion to forgive
his forfeiture.
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 (“[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
(1892); see also Pearson v. Callahan, 555 U.S. 223, 241
(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 (1988) (“A fundamental and
longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the
25
necessity of deciding them.”); N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 90 (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 (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.
2011) (“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 (“[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 protect bin Laden, he also noted, “[T]his doesn’t mean that
if I was given an explosive belt and bin Laden . . . asked me to
explode myself, that I wouldn’t do that. Of course, I would.”
App. 194. He promised to continue “to fight America” if
26
released “until the last drop of blood.” App. 161–62; see also
App. 161 (“I will not leave the American government
anywhere on the face of this earth.”). As I explain later, infra
pp. 38–42, Bahlul’s conduct was indisputably illegal under
international law, whether or not he was charged with an
offense the international community expressly recognizes.
See Marcus, 560 U.S. at 265 (declining to exempt from plain-
error review “errors that create a risk that a defendant will be
convicted based exclusively on noncriminal conduct”). The
notion that we should pardon Bahlul’s forfeiture is “so
ludicrous as itself to compromise the public reputation of
judicial proceedings.” Puckett, 556 U.S. at 143; see also
Cotton, 535 U.S. at 634 (“The real threat . . . to the ‘fairness,
integrity, and public reputation of judicial proceedings’ would
be if respondents, despite the overwhelming and
uncontroverted evidence that they were [guilty], were to
[benefit from] an error that was never objected to at trial.”).
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 (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.
Nor is this a case where applying the ordinary rules of
forfeiture would forever prevent de novo review of the
27
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.
But the CFTC’s jurisdiction was non-exclusive: parties
remained free to bring reparations claims in federal court. Id.
at 836. 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. 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 Article
III. This Catch-22 likely animated the Schor Court’s decision
to excuse the waiver and explains why it thought that “the
parties cannot be expected to protect” the “institutional
interests” behind Article III. Id. at 851. Here, that concern is
plainly absent because every enemy combatant has the
ability—and incentive—to challenge the military
commission’s jurisdiction. See Bond v. United States, 131
S. Ct. 2355, 2365 (2011) (“[T]he claims of individuals—not
of Government departments—have been the principal source
of judicial decisions concerning separation of powers and
checks and balances.”); Daniel J. Meltzer, Legislative Courts,
Legislative Power, and the Constitution, 65 IND. L.J. 291, 304
(1990) (“[T]he strategic interests of litigants substantially
coincide with institutional interests protected by article III.”).
We can indeed check “the power of the political branches to
sideline the federal courts,” Maj. Op. 6, once an enemy
combatant properly preserves the argument. See Sharif, No.
13-935, slip op. at 19 (“the Article III right is substantially
honored” notwithstanding courts “permitting waiver” in some
cases).
28
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 Plaut and overruled
in Sharif—and ignores important distinctions between civil
and criminal cases. Cf. Sharif, No. 13-935, dissenting op. at
18 (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, 542 U.S. 74, 83 n.9
(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 Article III, as the en banc court’s
decision and my colleague’s concurrence impliedly recognize.
See Bahlul, 767 F.3d at 18–27; Concur. Op. 1–2. At the very
least, “the lack of prior precedent . . . and the novelty of the
issue presented militate against calling th[is] mistake plain
error.” United States v. Blackwell, 694 F.2d 1325, 1342 (D.C.
Cir. 1982); see also United States v. Terrell, 696 F.3d 1257,
1260 (D.C. Cir. 2012) (error not plain unless “a clear
precedent in the Supreme Court or this circuit establishe[s] its
erroneous character”). Thus, no matter one’s view of the
merits, Bahlul cannot satisfy the “plainness” requirement of
the plain-error standard. See Olano, 507 U.S. at 732. Nor do
I believe he can satisfy the “error” requirement, a topic I turn
to now.
29
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, 9 “pursuant to an
express . . . authorization of Congress.” Youngstown, 343
U.S. at 635 (Jackson, J., concurring). Their constitutionality
is therefore “supported by the strongest of presumptions and
the widest latitude of judicial interpretation, and the burden of
persuasion . . . rest[s] heavily upon” Bahlul to rebut it. Id. at
637. Additionally:
[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
9
See Bahlul, 767 F.3d at 6 (“In 2003, the President designated Bahlul
eligible for trial by military commission and in 2004 military prosecutors
charged him with conspiracy to commit war crimes.”).
30
by the courts without the clear conviction that they
are in conflict with the Constitution . . . .
Ex parte Quirin, 317 U.S. 1, 25 (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, U.S.
CONST. art I, § 8, cl. 10. Second, he argues that the Define
and Punish Clause allows the Congress to codify a law-of-war
offense only if the international community has expressly
agreed, element-by-element, that the offense is cognizable.
And based on the Government’s concession that “conspiracy
has not attained recognition at this time as an offense under
customary international law,” Gov’t’s En Banc Br. at 34,
Bahlul insists that “[t]he answer . . . is both plain and
10
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, 548 U.S. at 602 (plurality). Justice Thomas, in
dissent, correctly pointed out that “[t]his is a pure contrivance, and a bad
one at that. It is contrary to the [clear conviction] presumption we
acknowledged in Quirin.” Id. at 690 (Thomas, J., dissenting). In any
event, the Quirin presumption, even by the Hamdan plurality’s lights,
applies here because Bahlul’s offense is “defined by statute”—namely, the
2006 MCA. See id. at 602 (plurality).
31
uncontested”: conspiracy falls outside the Congress’s Article I
power. Pet’r’s Br. 24.
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, 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 Supreme Court has recognized, the
“capture, detention, and trial of unlawful combatants” are
“ ‘important incidents of war,’ ” Hamdi v. Rumsfeld, 542 U.S.
507, 518 (2004) (plurality) (quoting Quirin, 317 U.S. at 28
(emphases added) (alteration omitted)), and the Congress’s
power to conduct war, in all of its “incidents,” necessarily
derives from its several Article I war powers mutatis
mutandis. “[U]nlike the Define and Punish Clause, . . . the
other Article I war powers clauses do not refer to international
law and are not defined or constrained by international law.”
Bahlul, 767 F.3d at 73 (Kavanaugh, J., concurring/dissenting).
32
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.” 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 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.”
33
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 54 (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 (1820). The observation has stood
the test of time. As declared at the Nuremburg 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
34
of law. . . . The law of war is to be found not only in
treaties, but in the customs and practices of states
which gradually obtained universal recognition, and
from the general principles of justice applied by
jurists and practised by military courts. This law is
not static, but 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: N UREMBERG 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, 798 F.2d
at 1458 (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 Chi. & S. Air Lines, Inc. v. Waterman Steamship
Corp., 333 U.S. 103, 111 (1948)). Indeed, “[j]udicial
deference to such congressional definition is but a corollary to
the grant to Congress of any Article I power.” Eldred v.
Ashcroft, 537 U.S. 186, 218 (2003) (emphasis added)
(quotation marks omitted).
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
35
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. 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.
But the precedent my colleagues cannot reconcile with
their Define and Punish Clause holding is Application of
Yamashita, 327 U.S. 1 (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 (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 (majority op.). While the
crimes committed by Yamashita’s soldiers and sailors were
“recognized in international law as violations of the law of
war,” Yamashita himself was not charged with participating
in, or directing, their commission but instead with “fail[ing] to
discharge his duty as commander to control . . . the members
of his command.” Id. at 13–14. The difficulty, then, was that
international law did not expressly provide that a war-time
commander could be prosecuted for failing to stop those
under his command from committing war crimes. See Siegal,
supra, at 883 (noting international law “dealt only
tangentially with the issue” and “no provision dealt
specifically with a commander’s obligation to control his
troops”). Nevertheless, the Court affirmed Yamashita’s
conviction and capital sentence.
In so doing, the Court framed the question as follows:
36
[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. 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 (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 (quoting 36 Stat. 2306) (emphases added). 11
Notwithstanding the absence of international authority
outlawing a commander’s failure to affirmatively prevent
11
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, 327 U.S. at 15 (quoting 36 Stat. 2389), and
Article 26 of the Geneva Red Cross Convention of 1929, which included
rules related to wounded and sick in armies and made it the commander’s
duty to provide “details of execution of” his duties under that Convention.
Id. at 15–16 (quoting 47 Stat. 2074, 2092).
37
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 (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 (Murphy, J., dissenting)
(noting that “[i]nternational law ma[de] no attempt to define
the duties of a commander of an army under constant and
overwhelming assault; nor [did] it impose liability under such
circumstances”); id. at 43 (Rutledge, J., dissenting), on the
same ground Bahlul today urges. Justice Murphy’s criticism
was sweeping: “Nothing in all history or in international law”
established that “such a charge against a fallen commander of
a defeated force” constituted a war crime. Id. at 35 (Murphy,
J., dissenting); see also Eugene Kontorovich, Discretion,
Delegation, and Defining in the Constitution’s Law of Nations
Clause, 106 NW. U. L. REV. 1675, 1736 (2012) (charge in
Yamashita was upheld “with some general and not quite on-
point citations to the Hague Conventions.”). 12
12
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. 27. Rather, in Yamashita, as in Quirin and Hamdan,
the Court noted that the Congress did not “itself undertake[] to . . . define”
the law of war. See infra p. 44. It is wrong, however, to suggest that
38
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. 10
U.S.C. § 950v(28) (2006). As is common in the United
States, the conspiracy offense set out in the 2006 MCA has
two elements: an agreement to commit a war crime and an
overt act in furtherance of that agreement. Cf., e.g., 18 U.S.C.
§ 371.
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
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 Yamashita’s
significance, the silence is deafening.
13
Bahlul was also convicted of material support and solicitation, which
convictions were earlier vacated by the en banc court. See Bahlul, 767
F.3d at 5, 29, 31.
39
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 commission of a crime,” and “the accused’s participation
in the common design.” Giulia Bigi, Joint Criminal
Enterprise in the Jurisprudence of the International Criminal
Tribunal for the Former Yugoslavia and the Prosecution of
Senior Political and Military Leaders: The Krajišnik Case, in
14 MAX PLANCK YEARBOOK OF UNITED N ATIONS LAW 56 (A.
von Bogdandy & R. Wolfrum eds. 2010).
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. 24. The
Nuremburg 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,
40
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 (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 C AL. 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 N UREMBERG 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 participated 15 in the plan to attack our
14
My colleagues fault my reliance on Madsen because “that case
involved a military government commission, not a law of war military
commission.” Maj. Op. 31–32. 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
Madsen’s discussion of “the history of United States military
commissions” encompasses Bahlul’s military commission. See Madsen,
343 U.S. at 346.
15
The charges against Bahlul, on which he was convicted, alleged that he:
41
a. traveled to Afghanistan with the purpose and intent of
joining al Qaeda;
b. met with Saif al ‘Adl, 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 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 Jarrah 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
Usama bin Laden and other members of the al Qaeda
leadership.
Charge Sheet 2–3; Findings Worksheet 3–4.
42
country on September 11, 2001, which plan’s purpose—to
murder civilians—“amounts to” the commission of a war
crime.
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. 15. 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 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. 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. 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. 40–41 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 (1938). Law is created, not
43
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). In my view, the Congress can,
consonant with the Define and Punish Clause, track somewhat
ahead of the international community. The United States can
be the standard bearer and take the reins in resolving difficult
questions of international law related to the ongoing threat of
international terrorism. See Bahlul, 767 F.3d at 61 (Brown, J.,
concurring/dissenting) (“Perhaps the United States should be
a leader in this area—a leader in international law
commensurate with its status as a military leader in the war on
terror—recognizing the offense of conspiracy to commit acts
of terrorism.”). 16
16
Unlike my colleagues, see Maj. Op. 24, 26–27, I do not find the dicta
from United States v. Furlong, 18 U.S. 184 (1820), or United States v.
Arjona, 120 U.S. 479 (1887), on point. Furlong merely held that the
Congress could not declare “murder to be piracy” because “there exist
well-known distinctions between the crimes of piracy and murder” and
“[t]hese are things so essentially different in their nature[] that not even
the omnipotence of legislative power can confound or identify them.” 18
U.S. at 196, 198. The same bright line cannot be drawn here because,
unlike piracy—“a crime of a settled and determinate nature”—“[o]ffences
44
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 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, 317 U.S. at 29–30.
Accordingly, to determine whether an offense was covered by
section 821, the Supreme Court had to survey the “common
law” of war, id. at 30; Hamdan, 548 U.S. at 593, which is
necessarily limited to the offenses already recognized as
triable by military commission. See Hamdan, 548 U.S. at 595
(plurality) (“The common law governing military
commissions may be gleaned from past practice and what
sparse legal precedent exists.”); see also Quirin, 317 U.S. at
. . . against the law of nations, cannot, with any accuracy, be said to be
completely ascertained and defined.” Smith, 18 U.S. at 159, 161. Arjona,
moreover, stands only for the proposition that a statute need not include
the phrase “offense against the law of nations” to be a valid exercise of the
Congress’s Define and Punish Clause power. 120 U.S. at 488. It says
nothing about the deference we owe the Congress when it exercises that
power. Cf. Boos, 485 U.S. at 329 (deferring to “congressional judgment in
this delicate area”); Ware v. Hylton, 3 U.S. 199, 224 (1796) (opinion of
Chase, J.) (“If the right is conceded to be in Congress, it necessarily
follows, that she is the judge of the exercise of the right, as to the extent,
mode, and manner.”).
45
29 (looking to what “our courts” have recognized as
“violations of the law of war”).
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 (plurality) (noting Congress
had not “positively identified ‘conspiracy’ as a war crime”);
id. at 612 (noting “the absence of specific congressional
authorization”); id. at 595 (majority op.) (same); id. at 636
(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 (Kennedy, J., concurring in part) (quoting Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (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 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. 26; Concur. Op. 4. The en
banc court, however, necessarily recognized that the Congress
was exercising its power to “define” in the 2006 enactment.
See Bahlul, 767 F.3d at 13 (“[T]he 2006 MCA . . . provides
the President the very power he sought to exercise in
46
Hamdan—the power to try the 9/11 perpetrators for
conspiracy . . . by military commission . . . . We must heed
this inter-branch dialogue.” (citations omitted)); id. at 26
(“[T]he elements of the conspiracy charge were not defined
by statute in Hamdan . . . . Here, the Congress has positively
identified conspiracy as a war crime.” (citation omitted)).
Moreover, the legislative history accompanying the 2006
MCA makes plain that the Congress viewed itself as acting
pursuant to its authority under the Define and Punish
Clause. 17 My colleagues rely on the Government’s failure to
argue this point but we “retain[] the independent power to
identify and apply the proper construction of governing law.”
U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439, 446 (1993). And, to the extent we consider the
parties’ characterizations of what the Congress did, Bahlul
himself concedes that the Congress “codified a conspiracy
offense . . . in a self-conscious exercise of its power under the
Define & Punish Clause.” Pet’r’s Br. 22; see also id. at 21–
22 (“The Define & Punish Clause is the authority . . . to which
Congress looked when enacting the 2006 Act.” (citing H.R.
REP. NO. 109-664, pt. 1, at 24)); id. at 25 (“Congress enacted
17
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 . . . 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.”).
47
[the challenged provision] in explicit reliance on its power
under the Define & Punish Clause.”). Contrary to my
colleagues’ suggestion, Maj. Op. 26, the Congress does not
need to incant any magic words to invoke its “define” power.
See Arjona, 120 U.S. at 488 (if “[a] statute defines the
offense, . . . there is no more need of declaring in the statute
that it is . . . an offense [against the law of nations] than there
would be in any other criminal statute to declare that it was
enacted to carry into execution any other particular power”).
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 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, 343 U.S.
at 635–38 (Jackson, J., concurring). The Congress has used
its expertise in national security and military affairs, see
Finzer, 798 F.2d at 1458–59, which warrants the Judiciary’s
utmost deference. Unlike my colleagues, I would not treat
this case as another Quirin or Hamdan. Every Justice in
Hamdan who ruled against the Government necessarily
recognized that a case like Bahlul’s would present a much
easier question. Here, the Congress and the President have
acted in concert, cloaking their actions “with all the attributes
of sovereignty.” Youngstown, 343 U.S. at 635 n.2 (Jackson,
J., concurring). We should “hesitate long before limiting or
embarrassing such powers,” id. (emphasis omitted)—much
longer and harder than my colleagues have hesitated here.
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
48
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, 560 U.S. 126, 134 (2010); see also
Gonzales v. Raich, 545 U.S. 1, 22 (2005) (statute falls within
Necessary and Proper Clause if “Congress had a rational
basis” for concluding statute implements another enumerated
Article I power). The constitutionally enumerated power
here—the Define and Punish Clause—allows the Congress, at
a minimum, to codify Bahlul’s object offenses (e.g., murder
in violation of the law of war) as war crimes triable by
military commission. See Quirin, 317 U.S. at 29. Trying by
military commission those who conspire to commit war
crimes is “convenient,” “useful,” and “ ‘conducive’ to the . . .
‘beneficial exercise’ ” of the Congress’s power to authorize
the trial of substantive war crimes and doing so is abundantly
rational. Comstock, 560 U.S. at 133–34 (quoting M’Culloch
v. Maryland, 17 U.S. 316, 413, 418 (1819)).
In Comstock, the Supreme Court held that the Necessary
and Proper Clause granted the Congress the authority to enact
a civil-commitment statute allowing the Department of Justice
49
to detain certain federal prisoners beyond their release date.
Id. at 129–30. It based its holding on “five considerations”:
(1) the Necessary and Proper Clause “grants Congress broad
authority to enact federal legislation,” id. at 133; (2) the civil-
commitment statute was a “modest addition” to preexisting
law, id. at 137; (3) the Congress had sound reasons for the
statute and the statute was “reasonably adapted” thereto, id. at
142–43; (4) the statute “properly accounts for state interests,”
id. at 143; and (5) the connection between the statute and an
enumerated Article I power was “not too attenuated” and the
statute was not “too sweeping in its scope,” id. at 146. Here,
each of these considerations indicates that the Congress acted
within its constitutional authority.
First, as Comstock emphasized, the Congress’s power
under the Necessary and Proper Clause is broad. See id. at
133; see also Armstrong v. Exceptional Child Center, Inc.,
135 S. Ct. 1378, 1383 (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 (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
50
constitutionally enumerated power.” Comstock, 560 U.S. at
134; see also Sabri v. United States, 541 U.S. 600, 605 (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 (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. 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, and that states are
“expressly prohibited from entering into any ‘treaty, alliance,
or confederation.’ ” Id. (quoting U.S. CONST . art. I, § 10, cl.
1). In fact, the Define and Punish Clause itself recognizes
that “[t]he national government is . . . responsible to foreign
nations for all violations by the United States of their
international obligations.” Id.
Third, the Congress has indisputably sound reasons for
codifying conspiracy as a war crime triable by military
commission. As the Supreme Court has explained,
“[c]oncerted action both increases the likelihood that the
criminal object will be successfully attained and decreases the
probability that the individuals involved will depart from their
path of criminality.” Callanan v. United States, 364 U.S. 587,
593 (1961). Bahlul himself recognized this fact at his
military-commission trial. He stated that he had “asked bin
Laden for a martyrdom operation, a suicide operation; but
51
[bin Laden] refused.” App. 194. He was instead put in
charge of propaganda because, according to bin Laden,
“recruiting people through media gets you more people than
suicidal attacks.” Id. Furthermore, there is no principled
reason to prevent the United States—or any member of the
international community, for that matter—from subjecting to
military justice those enemy combatants who plot, but fail, to
commit war crimes. Once conspirators enter into an
agreement, their “[c]riminal intent has crystallized, and the
likelihood of actual, fulfilled commission warrants preventive
action.” United States v. Feola, 420 U.S. 671, 694 (1975)
(emphasis added).
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.
52
Bahlul makes no attempt to distinguish Comstock,
arguing instead that United States ex rel. Toth v. Quarles, 350
U.S. 11 (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, 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 (quoting U.S. CONST . art. I, § 8, cl. 14). The Court
declared that the Make Rules Clause “authorizes Congress to
subject persons actually in the armed service to trial by court-
martial for military and naval offenses.” Id. (emphasis
added). It gave two reasons that the Congress had exceeded
its Article I authority by trying Toth, by then a civilian, via
court-martial: (1) the Necessary and Proper Clause did not
empower the Congress “to deprive people of trials under Bill
of Rights safeguards”; and (2) it was “impossible to think that
the discipline of the Army [was] going to be disrupted, its
morale impaired, or its orderly processes disturbed, by giving
exservicemen the benefit of a civilian court trial when they
[were] actually civilians.” Id. at 22.
Neither of these concerns exists here. There is no risk
that a countervailing constitutional right supersedes the
Necessary and Proper Clause because Bahlul—an alien
enemy combatant outside the sovereign United States—is not
protected by the Bill of Rights. See infra Part II.B.2. In
addition, the Supreme Court’s holding that Toth could not be
tried by court-martial was, by necessary implication, a
determination that the trial of a citizen by court-martial was
not “rationally related” to the Congress’s authority under the
53
Make Rules Clause. Comstock, 560 U.S. at 134. 18 The Army
would gain nothing in discipline or morale by court-
martialing an individual who was no longer a service member.
See Toth, 350 U.S. at 22. As just discussed, supra pp. 50–51,
the Congress’s inclusion of conspiracy to commit war crimes
as an offense triable by military commission is rationally
related to its unquestioned authority to make war crimes
themselves triable by military commission. And trying
conspiracy by military commission is not inconsistent with
international law. Cf. M’Culloch, 17 U.S. at 421. Conspiracy
to commit war crimes is not a purely “domestic” offense,
Maj. Op. 15, but instead is in accord with the international
community’s agreement that those who conspire to commit
war crimes can be punished as war criminals. See supra Part
II.A.1.
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 (1950). Specifically, the
Congress has the power:
18
My colleagues’ reliance on Kinsella v. United States ex rel. Singleton,
361 U.S. 234 (1960), and Reid v. Covert, 354 U.S. 1 (1957) (plurality),
suffers from the same deficiency as Bahlul’s reliance on Toth. The only
difference is that in Singleton and Reid, the subjects of the attempted
courts martial were the civilian spouses of service members, not ex-
servicemen. See Singleton, 361 U.S. at 235; Reid, 354 U.S. at 3.
54
• “[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.
Supreme Court precedent, Colonel Winthrop’s influential
treatise and our constitutional history all support the
proposition that the Congress’s authority to specify law-of-
war offenses triable by military commission is also supported
by its broader war powers.
55
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, 453 U.S. at 65 (“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 (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. Historically, “their procedure”
and “their jurisdiction” have been “adapted in each instance
to the need that called [them] forth.” Id. at 347–48 (citing
Yamashita, 327 U.S. at 18–23 (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 (1866) (Chase, C.J., concurring
in judgment).
56
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. 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 (“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. 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 (emphasis added).
To the extent Quirin’s scope may be debatable, the
Yamashita Court made plain that Quirin does not limit the
Congress’s power to codify law-of-war offenses to the Define
and Punish Clause. Although it recognized Quirin’s holding
that the Define and Punish Clause provided the Congress with
sufficient power to authorize the trial of the Nazi saboteurs by
military commission, Yamashita, 327 U.S. at 7, the Yamashita
Court reiterated that military-commission trials are “[a]n
important incident to the conduct of war.” Id. at 11 (citing
Quirin, 317 U.S. at 28). The Court continued:
57
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 (emphases added) (citations omitted); see also
Toth, 350 U.S. at 13–14 & n.4 (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 (emphases added). In other words,
the Yamashita Court cited domestic law to supplement, not
merely “limit[],” the law of war. Cf. Maj. Op. 12. Justice
Murphy, in dissent, likewise examined whether “the laws of
58
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 (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 (citing Yamashita, 327 U.S. at 18–23). 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
19
See, e.g., Hamdan, 548 U.S. at 591 (listing broader war powers);
Hamdi, 542 U.S. at 518 (plurality) (“The capture and detention of lawful
combatants and the capture, detention, and trial of unlawful combatants,
by ‘universal agreement and practice,’ are ‘important incident[s] of war.’ ”
(quoting Quirin, 317 U.S. at 28, 30)); accord id. at 579 (Thomas, J.,
59
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. Because they apparently see Quirin as the alpha and
omega of the Congress’s Article I war powers, they conclude
that Bahlul’s conspiracy conviction cannot stand. But
Yamashita belies their conclusion that Quirin set the
“contours” of law-of-war jurisdiction, Maj. Op. 11, that those
contours are defined exclusively by express international
agreement, Maj. Op. 15–16, and that “[t]he Supreme Court
has adhered to Quirin’s understanding of the meaning of the
‘law of war’ for over seventy years.” Maj. Op. 13.
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, 317 U.S. at 25. Secondary
authority also weighs against him. Almost one hundred years
ago, Colonel William Winthrop, considered the “Blackstone
dissenting) (“The Executive Branch, acting pursuant to the powers vested
in the President by the Constitution and with explicit congressional
approval, has determined that Yaser Hamdi is an enemy combatant and
should be detained. This detention falls squarely within the Federal
Government’s war powers, and we lack the expertise and capacity to
second-guess that decision.”); Rasul v. Bush, 542 U.S. 466, 487 (2004)
(Kennedy, J., concurring in judgment) (“The decision in Eisentrager
indicates that there is a realm of political authority over military affairs
where the judicial power may not enter. The existence of this realm
acknowledges the power of the President as Commander in Chief, and the
joint role of the President and the Congress, in the conduct of military
affairs.”).
60
of Military Law,” Reid, 354 U.S. at 19 n.38 (plurality),
authored the definitive treatise on these matters. In his
chapter “Authority and Occasion for the Military
Commission,” Winthrop made plain that, “in general, it is
those provisions of the Constitution which empower Congress
to ‘declare war’ and ‘raise armies,’ and which, in authorizing
the initiation of war, authorize the employment of all
necessary and proper agencies for its due prosecution, from
which th[e military] tribunal derives its original sanction.”
WILLIAM WINTHROP, MILITARY LAW & PRECEDENTS 831
(1920) (emphasis in original). According to Winthrop, a
military tribunal “is simply an instrumentality for the more
efficient execution of the war powers vested in Congress and
the power vested in the President as Commander-in-chief in
war.” Id. (emphasis added).
Notwithstanding his reference to the “Law of War” as
“intended [to refer to] that branch of International Law which
prescribes the rights and obligations of belligerents,” he
further observed that the “Law of War in this country is not a
formal written code, but consists mainly of general rules
derived from International Law, supplemented by acts and
orders of the military power and a few legislative provisions.”
Id. at 773 (first emphasis in original). Winthrop, it appears,
had no issue with Congressional “supplementation” of law-of-
war offenses proscribed by international agreement. In his
treatise, Winthrop listed 20 the “offences in violation of the
20
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
61
laws and usages of war” and described them as “those
principally, in the experience of our wars,” that have been
“cognizable by military tribunals.” WINTHROP, supra, at 839
(emphasis added). The most natural reading of Winthrop’s
expertise—a reading also consistent with Article I’s multiple
war powers and the Supreme Court’s analyses in both
Yamashita, 327 U.S. at 11–12, and Madsen, 343 U.S. at 346–
48—is that the Define and Punish Clause is one grant of
power to the Congress to determine the law-of-war offenses
triable by military commission but it is not the exclusive one.
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]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”).
62
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. 18. There is no dispute that the “military
commission . . . was born of military necessity.” Hamdan,
548 U.S. at 590. 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 the investigation of Lincoln’s
assassination and the pursuit of the conspirators.”); id. at 145
(“The administration . . . decided to try the alleged
conspirators before a military commission rather than in the
civil courts.”), concluding that the charging document
“referred to conspiracy” but did not in fact charge conspiracy.
Maj. Op. 18. According to the charging document, however,
the Lincoln conspirators were charged with “combining,
confederating, and conspiring together . . . to kill and murder
. . . Abraham Lincoln.” J. HOLT & T. EWING, CHARGE AND
SPECIFICATION AGAINST D AVID E. HEROLD, ET AL. (1865)
(emphasis added); see also REHNQUIST, supra, at 143
(“Obviously, Booth had not acted alone in this enterprise, and
the stage was now set for the trial of those who were charged
with having conspired with him.” (emphasis added)). The
circumstances surrounding the Lincoln assassination also
make indisputable that the defendants could only have been
charged with conspiracy. Because John Wilkes Booth was
63
the lone assassin and was himself killed while a fugitive, the
remaining eight necessarily could have been tried and
convicted based solely on their conspiracy. One of those
eight individuals—Mary Surratt, who was hanged for her
role—participated in the conspiracy by allowing the others to
use her boarding house as a meeting place. See REHNQUIST,
supra, at 165. And two other Lincoln conspirators—Michael
O’Laughlin and Samuel Arnold—could have been convicted
only of inchoate conspiracy because, “[b]efore the final plot
to assassinate Lincoln was hatched, O’Laughlin and Arnold
appear to have abandoned the enterprise.” Id. at 162. Indeed,
Arnold had apparently “told the others he wanted nothing
more to do with the affair” one month before the assassination
and, when Arnold withdrew, the remaining conspirators
planned to kidnap—not assassinate—Lincoln. Id. at 160.
Nevertheless, both O’Laughlin and Arnold were convicted
and sentenced to life imprisonment at the conclusion of their
military-commission trial. See id. at 162. Today, their
withdrawal would have immunized them from the
“postwithdrawal acts of [their] co-conspirators,” Smith v.
United States, 133 S. Ct. 714, 719 (2013), and they would not
have been convicted of a completed offense. But
abandonment without also preventing the object offense is not
a defense to inchoate conspiracy. See MODEL PENAL CODE
§ 5.03(6).
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.
19. 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
64
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 (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, would retroactively
undermine the constitutionality of at least two of the Lincoln
conspirators’ convictions. Contra Bahlul, 767 F.3d at 25
(“the Lincoln conspirators’ trial [i]s a particularly significant
precedent” because it “was a matter of paramount national
importance and attracted intense public scrutiny”).
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
21
My colleagues object to my reliance on Milligan, having been decided
after the military-commission trial of the Lincoln conspirators. See Maj.
Op. 19. Three Lincoln conspirators petitioned for a writ of habeas corpus
in 1868, however, relying on Milligan to argue that “military tribunals
have no authority to try civil offenses in districts where the regularly
organized civil courts of the country are in undisturbed possession of all
their powers.” Ex parte Mudd, 17 F. Cas. 954, 954 (S.D. Fla. 1868). The
district court dismissed the petition, Milligan notwithstanding. See id. (“I
do not think that ex parte Milligan is a case in point here.”). 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.” Id.; 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).
65
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 . N AT’ 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; see also United States v.
Nixon, 418 U.S. 683, 703 (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. 20. 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
66
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 not
“addressing the conspiracy charge.” Maj. Op. 20. But the
Tenth Circuit put no such limitation on its holding. And even
if it had, “[t]he U.S. Army continued to follow” Colepaugh
“to try conspiracy in overseas theaters of war during the
concluding months of World War II” 22 and to authorize trial
of conspiracy by military commission during the Korean
War. 23 Thravalos, supra, at 242–43.
Rather than meet this—to me—robust history, my
colleagues instead take issue with the Government’s
(admittedly) paltry submission. See Maj. Op. 16–21. 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 (quoting
22
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).
23
See U.N. COMMAND, RULES OF CRIMINAL PROCEDURE FOR M ILITARY
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).
67
Blodgett v. Holden, 275 U.S. 142, 148 (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. The Congress has ample authority under the
Define and Punish Clause—especially when supplemented by
the Necessary and Proper Clause and the broader war powers
and supported by judicial precedent, Winthrop’s treatise and
history—to authorize a military-commission trial charging
conspiracy to commit war crimes.
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. 8; see also
Maj. Op. 26–27. 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; 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 (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. 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 (1904) (“[I]t must be remembered that legislatures
are ultimate guardians of the liberties and welfare of the
68
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, J.,
concurring in denial of rehearing en banc) (discussing
potential “serious consequences, such as subjecting the United
States to sanctions, undermining U.S. standing in the world
community, or encouraging retaliation against U.S. personnel
abroad” should political branches “ignore or disregard
international-law norms” but nonetheless maintaining that “in
our constitutional system of separated powers, it is for
Congress and the President—not the courts—to determine in
the first instance whether and how the United States will meet
its international obligations”).
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. III, § 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. III, § 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 . . . .”).
69
Together, the Vesting Clauses erect “walls” that separate the
three branches, Plaut, 514 U.S. at 239, and prevent them from
“shar[ing]” their respective powers, Nixon, 418 U.S. at 704.
The walls, however, are not “hermetically sealed,” Stern, 131
S. Ct. at 2609, and they must bend a little to ensure we remain
“a Nation capable of governing itself effectively,” Buckley v.
Valeo, 424 U.S. 1, 121 (1976). See also Mistretta v. United
States, 488 U.S. 361, 381 (1989) (“While the Constitution
diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers
into a workable government.” (quoting Youngstown, 343 U.S.
at 635 (Jackson, J., concurring)); Mo., K. & T. Ry, 194 U.S. at
270 (“Some play must be allowed for the joints of the
machine . . . .”).
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. III, § 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 Stern, 131 S. Ct. at
2608–09. And they restrain the Congress’s authority to assign
the judicial power to federal tribunals lacking the insulating
protections of Article III. See id.
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 (plurality); see also id. at 94
(White, J., dissenting) (“[A]t this point in the history of
constitutional law th[e Article III] question can no longer be
answered by looking only to the constitutional text.”). The
Supreme Court has recognized several historical—albeit
70
atextual—“exception[s]” to the Judicial Power Clause. See
id. at 63–76 (plurality). The deviations are justified by
longstanding historical practice and “exceptional
constitutional grants of power to Congress” over particular
subject matters. Id. at 70 & n.25.
The military commission is one such exception. See
Eisentrager, 339 U.S. at 785–90; Quirin, 317 U.S. at 39–41;
Ex parte Vallandigham, 68 U.S. 243, 251–53 (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. 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; Quirin, 317 U.S. at 31 & nn.9–10. Moreover, the
Constitution vests broad war powers in the Congress,
Eisentrager, 339 U.S. at 788, and military-commission trials
are part of waging war. See Yamashita, 327 U.S. at 11–12.
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 (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:
71
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 (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. 30–32; Concur. Op. 3. 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 (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
(“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 (announcing “practical” test for courts to apply “in
reviewing Article III challenges”). Criminal cases are not
exempt from this framework. See United States v. Seals, 130
72
F.3d 451, 459 n.8 (D.C. Cir. 1997) (“While Schor addressed
. . . a state-law counterclaim in an administrative reparation
proceeding, there is no reason that the structural constitutional
analysis should be any different in the criminal context.”
(citing Mistretta, 488 U.S. at 382–83)). And they do not
enjoy any special significance under Article III. As the
Supreme Court has explained:
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 (1973); see also
id. at 407 (“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, No.
13-935, slip op. at 16 (“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.”).
73
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, No. 13-935, slip op. at 12–15.
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. 11–15; Concur. Op. 3–7. 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.
Applying the Schor balancing test here, I believe the
challenged provision does not violate the Judicial Power
Clause. Granted, on one side of the Schor balance, a military
74
trial for conspiracy implicates “private,” as opposed to public,
rights. See HART & WECHSLER’ S THE FEDERAL COURTS &
THE FEDERAL SYSTEM 336 (6th ed. 2009) (noting criminal
cases are private rights cases under Schor). This observation
“does not end our inquiry,” Schor, 478 U.S. at 853, but it
means our review must be “searching.” Id. at 854. Further,
military commissions exercise many, but not all, of the
“ordinary powers of district courts.” N. Pipeline, 458 U.S. at
85 (plurality). But see Sharif, No. 13-935, slip op. at 11 n.9
(non–Article III tribunal’s power to enter final judgment is
relevant but not decisive).
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, No. 13-935, slip op. at 19
(“[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 17 (“[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
75
Congress has subjected the military commission to judicial
review. The 2009 MCA, like its 2006 predecessor, 24 allows
the enemy combatants held at Guantanamo Bay, Cuba, to
appeal their convictions to this Court, 10 U.S.C. § 950g, after
intermediate review by the CMCR, id. § 950f. We then
review de novo all “matters of law” that an enemy combatant
preserves for appeal, id. § 950g(d), with the opportunity of
certiorari review by the Supreme Court, id. § 950g(e). This
safeguard “provides for the appropriate exercise of the
judicial function in this class of cases” and keeps the military
commission within the bounds of law. Crowell v. Benson,
285 U.S. 22, 54 (1932). As the Supreme Court has repeatedly
recognized, the availability of de novo review of questions of
law by an Article III court substantially allays any Judicial
Power Clause concerns with a given statutory arrangement.
See Schor, 478 U.S. at 853; Union Carbide, 473 U.S. at 592;
Crowell, 285 U.S. at 54; see also N. Pipeline, 458 U.S. at 115
(White, J., dissenting) (“the presence of appellate review by
an Art. III court will go a long way toward insuring a proper
separation of powers”). Granted, we review the military
commission’s verdict—i.e., its findings of fact—only for
“sufficiency of the evidence.” 10 U.S.C. § 950g(d). But,
contrary to my colleagues’ assertion, Maj. Op. 33–34, Article
III requires very little—perhaps zero—judicial review of
ordinary questions of fact. See Crowell, 285 U.S. at 51 (“[I]n
[private rights] cases . . ., there is no requirement that, in order
to maintain the essential attributes of the judicial power, all
determinations of fact in constitutional courts shall be made
by judges.”); The Francis Wright, 105 U.S. 381, 386 (1881)
24
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, 820 F. Supp. 2d 1141,
1156–57 (USCMCR 2011).
76
(Congress has “power to limit the effect of an appeal to a
review of the law as applicable to facts finally determined
below”). The deferential review provided by the 2009 MCA
thus goes beyond the constitutional minimum. See, e.g.,
Estep v. United States, 327 U.S. 114, 122 (1946) (upholding
“no basis in fact” standard for jurisdictional facts and zero
review for ordinary facts in criminal case); Union Carbide,
473 U.S. at 592–93 (review for “fraud, misconduct, or
misrepresentation” satisfies Article III); Schor, 478 U.S. at
853 (review for “weight of the evidence” satisfies Article III);
Crowell, 285 U.S. at 48 (“not supported by evidence”
standard satisfies Article III); see also Jackson v. Virginia,
443 U.S. 307, 318–19 (1979) (“sufficiency of the evidence”
standard satisfies due-process requirements for criminal
cases).
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 (quotation marks omitted). The 2006 MCA
enumerates, in total, 30 war crimes, 10 U.S.C. §§ 950r, 950u–
950v (2006), and only an “alien unlawful enemy combatant”
is subject to military-commission trial, id. § 948c. No one
disputes that military commissions can—consistent with
Article III—adjudicate expressly recognized international
law-of-war offenses. An inchoate offense like conspiracy
adds only a “narrow class of . . . claims . . . incident to the
[military commission’s] primary, and unchallenged,
adjudicative function.” Sharif, No. 13-935, slip op. at 13.
This is not a case in which the Congress “created a phalanx of
non–Article III tribunals equipped to handle the entire
business of the Article III courts.” Schor, 478 U.S. at 855.
Nor does the commission possess unbounded jurisdiction
“reaching any area of the corpus juris.” Stern, 131 S. Ct. at
2615. Here, “the magnitude of any intrusion on the Judicial
77
Branch can only be termed de minimis.” Schor, 478 U.S. at
856.
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. 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 25; the efficiency of military-commission
proceedings 26; the military’s expertise in matters of national
security 27; the inability to prosecute enemy combatants due to
speedy-trial violations 28; the inadmissibility of certain forms
of evidence 29; and, later, the risk of terrorist attacks on
25
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).
26
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).
27
See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen.
Graham); id. (statement of Sen. Kyl); 152 Cong. Rec. S10354 (Sept. 28,
2006) (statement of Sen. Graham); id. (statement of Sen. Cornyn); id.
(statement of Sen. Sessions).
28
See 10 U.S.C. § 948b(d)(1)(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).
29
See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen.
Graham); 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of Rep.
78
domestic courts. 30 Unlike my concurring colleague, who
believes that Article III courts are well-suited to try
conspirators like Bahlul, see Concur. Op. 8–9, 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 (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 (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. 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. “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
Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep.
Hunter).
30
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).
79
encroachment.” Id. (citing, as examples, Morrison v. Olson,
487 U.S. 654 (1988) and Schor, 478 U.S. 833). 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, and while “retain[ing] for itself no powers of
control or supervision,” Morrison, 487 U.S. at 694. 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 (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 (U.S. Sentencing Commission);
Schor, 478 U.S. at 851–58 (CFTC); Union Carbide, 473 U.S.
at 582–93 (mandatory arbitration); Palmore, 411 U.S. at 407–
10 (District of Columbia courts); Williams v. United States,
289 U.S. 553, 568–81 (1933) (Court of Claims); Crowell, 285
U.S. at 48–65 (workmen’s compensation board); Ex parte
Bakelite Corp., 279 U.S. 438, 452–61 (1929) (Court of
Customs Appeals); Dynes, 61 U.S. at 79 (courts martial); Am.
Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828)
(territorial courts). The bankruptcy cases are an anomaly in
this area of the law and I do not believe they provide a
relevant analog. Military commissions are a recognized
exception to Article III whereas bankruptcy courts are not.
See N. Pipeline, 458 U.S. at 71 (plurality) (Congress’s
bankruptcy power is not “exceptional grant of power” subject
to Article III exception); Stern, 131 S. Ct. at 2614 (bankruptcy
courts do not fall under “public rights” exception to Article
III). This case, then, is much easier than Stern and Northern
Pipeline: the historical exceptions to Article III are exceptions
80
not because they are close to the constitutional line but
because they are far from it. See Dynes, 61 U.S. at 79.
Historically, courts martial and military commissions are
thought to pose no Article III problem, notwithstanding they
are subject to little judicial review. See 28 U.S.C. § 1259;
Burns v. Wilson, 346 U.S. 137, 140–41 (1953) (plurality);
Vallandigham, 68 U.S. at 252–53. The availability of de novo
appellate review under the 2009 MCA keeps the challenged
provision in the constitutional fold, even if, arguendo,
inchoate conspiracy were to venture beyond the historical
Article III exception for military-commission jurisdiction.
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. III, § 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, 317 U.S. at 39
(“[I]t was not the purpose or effect of § 2 of Article III, read
in the light of the common law, to enlarge the then existing
right to a jury trial.”).
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
81
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
(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; see also Kahn v. Anderson, 255 U.S. 1, 8 (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; see also Whelchel v. McDonald, 340 U.S. 122,
127 (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 (“[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
(“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
82
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.
14—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 (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
(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 (1968)
(waiver of right to trial by jury in criminal case).
478 U.S. at 848–49 (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)).
83
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. According to the
Court, whether the petitioners had a right to trial by jury
“requires the same answer as the question whether Article III
allows Congress to assign adjudication . . . to a non–Article
III tribunal.” Id. at 53 (emphasis added). In other words, the
Judicial Power Clause—not the Seventh Amendment—is the
only structural limit on the Congress’s authority. “[I]f
Congress may assign the adjudication . . . to a non-Article III
tribunal, then the Seventh Amendment poses no independent
bar to the adjudication of that action by a nonjury factfinder.”
Id. at 53–54 (emphasis added). The same is true here. As
noted, supra Part II.B.1, the Judicial Power Clause allows the
Congress to authorize the trial of conspiracy by military
commission. Accordingly, Bahlul has no right to a jury and
the Criminal Jury Clause poses “no independent bar” to his
conviction. Id. at 54. 31
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; United States v.
Verdugo–Urquidez, 494 U.S. 259, 273–75 (1990); Zadvydas
31
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 548 U.S. at 591.
84
v. Davis, 533 U.S. 678, 693 (2001); Kwong Hai Chew v.
Colding, 344 U.S. 590, 597 n.5 (1953); United States v.
Belmont, 301 U.S. 324, 332 (1937); United States v. Curtiss–
Wright Export Corp., 299 U.S. 304, 318 (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; Balzac v. Porto Rico,
258 U.S. 298, 304–05 (1922); Dorr v. United States, 195 U.S.
138, 149 (1904); Territory of Hawaii v. Mankichi, 190 U.S.
197, 218 (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. 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. 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 (citizen wives of U.S. soldiers); Toth,
350 U.S. at 13 (U.S. soldier); Quirin, 317 U.S. at 20 (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 Suspension Clause protects enemy combatants held at
Guantanamo Bay. 553 U.S. 723, 795 (2008). This Court has
declined to extend Boumediene beyond its narrow holding.
See Maqaleh, 738 F.3d at 336 n.16 (“As a novel constitutional
development, we are loath to expand Boumediene’s reach
without specific guidance from the Supreme Court,
particularly where expansion would carry us further into the
realm of war and foreign policy.”); Kiyemba v. Obama, 555
F.3d 1022, 1032 (D.C. Cir. 2009) (“Boumediene . . .
specifically limited its holding to the Suspension Clause”).
And we lack the authority to read Boumediene as overruling
sub silentio Supreme Court precedent on the nonavailability
of jury rights to noncitizens abroad. See Rodriguez de Quijas
85
v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions.”).
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 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, 767 F.3d at
62 (Brown, J., concurring/dissenting); id. at 75–76
(Kavanaugh, J., concurring/dissenting). I fully endorse their
reasoning.
For the foregoing reasons, I respectfully dissent.