Ali Hamza Ahmad al Bahlul v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 30, 2013 Decided July 14, 2014

No. 11-1324

ALI HAMZA AHMAD SULIMAN AL BAHLUL,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

On Petition for Rehearing En Banc

Michel Paradis, Counsel, Office of the Chief Defense

Counsel, argued the cause for the petitioner. Mary R.

McCormick and Todd E. Pierce, Counsel, were on brief.

David S. Weissbrodt and William J. Aceves were on brief

for amicus curiae International Law Scholars in support of the

petitioner.

Agnieszka Fryszman was on brief for amicus curiae

National Institute of Military Justice in support of the

petitioner.

McKenzie A. Livingston was on brief for amici curiae

Robert D. Steele and other Former Members of the

Intelligence Community in support of the petitioner.

2

John S. Summers and Michael J. Newman were on brief

for amici curiae Professors David Glazier and Gary Solis in

support of the petitioner.

Sarah H. Paoletti was on brief for amici curiae

Historians, Political Scientists and Constitutional Law

Scholars in support of the petitioner.

Jeffrey T. Renz was on brief for amici curiae First

Amendment Scholars and Historians and the Montana Pardon

Project in support of the petitioner.

Elizabeth B. Wydra was on brief for amicus curiae

Constitutional Accountability Center in support of the

petitioner.

Ian H. Gershengorn, Attorney, U.S. Department of

Justice, argued the cause for the respondent. Steven M.

Dunne, Chief Attorney, and John F. De Pue, Attorney, were

on brief. Jeffrey M. Smith, Trial Attorney, U.S. Department

of Justice, and Francis A. Gilligan and Edward S. White,

Attorneys, Office of Military Commissions, entered

appearances.

James A. Schoettler Jr. was on brief for amici curiae

Former Government Officials, Former Military Lawyers and

Scholars of National Security Law in support of respondent.

Cory L. Andrews and Richard A. Samp were on brief for

amici curiae Washington Legal Foundation et al. in support of

the respondent.

Before: GARLAND, Chief Judge, and HENDERSON,

ROGERS, TATEL, BROWN, GRIFFITH and KAVANAUGH, Circuit

Judges.

3

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion concurring in the judgment in part and

dissenting filed by Circuit Judge ROGERS.

Opinion concurring in the judgment in part and

dissenting in part filed by Circuit Judge BROWN.

Opinion concurring in the judgment in part and

dissenting in part filed by Circuit Judge KAVANAUGH.

KAREN LECRAFT HENDERSON, Circuit Judge: Ali Hamza

Ahmad Suliman al Bahlul (Bahlul) served as a personal

assistant to Osama bin Laden, produced propaganda videos

for al Qaeda and assisted with preparations for the attacks of

September 11, 2001 that killed thousands of Americans.

Three months after 9/11, Bahlul was captured in Pakistan and

transferred to the United States Naval Base at Guantanamo

Bay, Cuba. Military prosecutors charged him with three

crimes: conspiracy to commit war crimes, providing material

support for terrorism and solicitation of others to commit war

crimes. A military commission convicted him of all three

crimes and sentenced him to life imprisonment. The United

States Court of Military Commission Review (CMCR)

affirmed his conviction and sentence. Bahlul appeals. For the

reasons that follow, we reject Bahlul’s ex post facto challenge

to his conspiracy conviction and remand that conviction to the

original panel of this Court for it to dispose of several

remaining issues. In addition, we vacate his material support

and solicitation convictions.

4

I. Background

Bahlul is a native of Yemen. In the late 1990s, he

traveled to Afghanistan to join al Qaeda. He completed

military-like training while staying at an al Qaeda guesthouse

and eventually met and pledged an oath of loyalty (“bayat”) to

bin Laden. Bin Laden assigned Bahlul to work in al Qaeda’s

media office.

On October 12, 2000, al Qaeda suicide bombers attacked

the U.S.S. Cole, killing 17 American servicemen and

wounding 39 others. Bin Laden later instructed Bahlul to

create a video celebrating the attack for use as a recruiting

tool. The video Bahlul produced (and bin Laden edited)

includes footage of the attack, calls for jihad against the

United States and propaganda blaming “Western infidels” and

complicit Middle Eastern regimes for Muslim suffering.

Bahlul considered it one of the best propaganda videos al

Qaeda had produced and it has been translated into several

languages and widely distributed.

Bin Laden then appointed Bahlul as his personal assistant

and secretary for public relations. Bahlul arranged the loyalty

oaths of two of the 9/11 hijackers, Mohamed Atta and Ziad al

Jarrah, and prepared their “martyr wills”—propaganda

declarations documenting al Qaeda’s role in the attacks.

Bahlul claims he sought to participate in the 9/11 attacks

himself but bin Laden refused because he considered his

media man too important to lose. In the days preceding 9/11,

Bahlul assembled al Qaeda’s media equipment and evacuated

al Qaeda’s Kandahar headquarters with bin Laden and other

senior al Qaeda leaders. They traveled to a remote region of

Afghanistan where, on September 11, 2001, they heard

reports of the day’s attacks via a radio operated by Bahlul.

5

Bin Laden subsequently asked Bahlul to research the

economic effects of the attacks and report his findings.

In the following weeks, Bahlul fled to Pakistan. He was

captured there in December 2001 and turned over to U.S.

forces. In 2002, he was transferred to the U.S. Naval Base at

Guantanamo Bay, Cuba, where he has since been detained as

an enemy combatant pursuant to the 2001 Authorization for

Use of Military Force (AUMF). See Pub. L. No. 107-40,

§ 2(a), 115 Stat. 224, 224; Hamdi v. Rumsfeld, 542 U.S. 507,

518, 521 (2004) (plurality). Two months after 9/11, President

Bush invoked the AUMF and Article 21 of the Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 821 (hereinafter

“section 821”), to establish military commissions to try

“member[s] of . . . al Qaida” and others who “engaged in,

aided or abetted, or conspired to commit, acts of international

terrorism, or acts in preparation therefor.” See Detention,

Treatment, and Trial of Certain Non-Citizens in the War

Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). 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.

Bahlul’s prosecution was stayed pending the outcome of

another detainee’s challenge to the lawfulness of his trial by

military commission. In Hamdan v. Rumsfeld, the United

States Supreme Court held that the military commission

procedures then in place contravened certain constraints

imposed by the UCMJ and the four Geneva Conventions

signed in 1949. 548 U.S. 557, 613–35 (2006). In response to

the Hamdan decision, the Congress enacted the Military

Commissions Act of 2006 (2006 MCA), Pub. L. No. 109-336,

120 Stat. 2600, which amended the statutory procedures

governing military commissions to cure the flaws identified in

Hamdan. The 2006 MCA specifically enumerated 30 war

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crimes triable by military commission, see 10 U.S.C. §§ 950t–

950v (2006),1 and conferred jurisdiction on military

commissions to try “any offense made punishable by this

chapter or the law of war when committed by an alien

unlawful enemy combatant before, on, or after September 11,

2001,” id. § 948d(a).

The Supreme Court has long recognized that unlawful

enemy combatants may be prosecuted by military commission

for their war crimes. See Hamdan, 548 U.S. at 592–93;

Hamdi, 542 U.S. at 518; In re Yamashita, 327 U.S. 1, 7–8, 11

(1946); Ex parte Quirin, 317 U.S. 1, 28, 31 (1942). There are

three traditional bases for military commission jurisdiction:

military government, martial law and the law of war. See

Hamdan, 548 U.S. at 595–98 (plurality opinion); see also id.

at 683 (Thomas, J., dissenting). First, military commissions

may try ordinary crimes—e.g., manslaughter or robbery—and

violations of military orders committed by both soldiers and

civilians in territories under U.S. military government. Id. at

595–96. Second, military commissions may try ordinary

crimes and violations of military orders committed by soldiers

and civilians in territory under martial law—as much of our

country was during the Civil War. See id. at 595; WILLIAM

WINTHROP, MILITARY LAW AND PRECEDENTS 832–34 (rev. 2d

ed. 1920). Third, and “utterly different” from the first two

categories, military commissions may try offenses against the

law of war. Hamdan, 548 U.S. at 596 (plurality opinion)

(citation omitted). It is undisputed that the commission that

tried Bahlul is of the third type: a law-of-war military

1

The Military Commissions Act of 2009 rewrote the 2006

MCA but left it substantively unaltered as relevant here. See

National Defense Authorization Act for Fiscal Year 2010, Pub. L.

No. 111-84, §§ 1801–07, 123 Stat. 2190, 2574–2614 (codified at 10

U.S.C. §§ 948a–950t (Supp. III 2010)). Unless otherwise noted, we

refer to the 2006 MCA.

7

commission. A military commission convened pursuant to

the 2006 MCA must be composed of at least five “members,”

who are qualified active duty officers of the armed forces and

play a role similar to a petit jury. 10 U.S.C. §§ 948i, 948m.

A military judge presides over the trial. Id. § 948j.

In 2008, military prosecutors amended the charges

against Bahlul to allege three of the offenses enumerated in

the 2006 MCA based on the conduct summarized above—

conspiracy to commit war crimes, providing material support

for terrorism and solicitation of others to commit war crimes.

See id. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). The

conspiracy and solicitation charges alleged seven object

crimes proscribed by the 2006 MCA: murder of protected

persons, attacking civilians, attacking civilian objects, murder

in violation of the law of war, destruction of property in

violation of the law of war, terrorism and providing material

support for terrorism. See id. § 950v(b)(1)–(3), (15)–(16),

(24)–(25). Bahlul admitted all of the factual allegations

against him, with the exception of the allegation that he had

armed himself with a suicide belt to protect bin Laden. He

nevertheless pleaded not guilty to the charged offenses

because he denied the legitimacy of the military commission

and sought to absent himself from the proceedings as a

boycott. He objected to representation by appointed defense

counsel and expressed a desire to proceed pro se, although his

attempts to absent himself from the proceedings at times

complicated matters and forced defense counsel to stand in

for Bahlul and carry out his instructions not to present a

defense. Bahlul waived all pretrial motions, asked no

questions during voir dire, made no objections to prosecution

evidence, presented no defense and declined to make opening

and closing arguments.

8

The military commission convicted Bahlul of all three

offenses. Using a detailed findings worksheet, it found that

Bahlul conspired to commit and solicited each of the seven

alleged object offenses and that Bahlul committed ten of the

eleven alleged overt acts. See Petitioner’s Appendix (App.)

132–33.2 The commission sentenced him to life

imprisonment and the convening authority, Susan J.

2

The military commission specifically found that Bahlul

committed the following overt acts: (1) traveled to Afghanistan

with the purpose and intent of joining al Qaeda; (2) met with Saif al

Adl, the head of the al Qaeda Security Committee, as a step toward

joining al Qaeda; (3) underwent military-type training at an al

Qaeda sponsored training camp located in Afghanistan; (4) pledged

fealty or “bayat” to the leader of al Qaeda, Osama bin Laden, joined

al Qaeda and provided personal services in support of al Qaeda; (5)

prepared and assisted in the preparation of various propaganda

products, including the video “The Destruction of the American

Destroyer U.S.S. Cole,” to solicit material support for al Qaeda, to

recruit to and indoctrinate personnel about the organization and

objectives of al Qaeda and to solicit, incite and advise persons to

commit terrorism; (6) acted as personal secretary and media

secretary of bin Laden in support of al Qaeda; (7) arranged for

Muhammed Atta and Ziad al Jarrah to pledge fealty or “bayat” to

bin Laden; (8) prepared the propaganda declarations styled as

martyr wills of Atta and al Jarrah in preparation for the acts of

terrorism perpetrated by Atta, al Jarrah and others at various

locations in the United States on September 11, 2001; (9) at the

direction of bin Laden, researched the economic effect of the 9/11

attacks on the United States and provided the results of that

research to bin Laden; and (10) operated and maintained data

processing equipment and media communications equipment for

the benefit of bin Laden and other members of the al Qaeda

leadership. App. 132–33; see also id. at 122–23 (charging

document).

9

Crawford,3 approved the findings and sentence. The CMCR

affirmed Bahlul’s conviction and sentence in a 112-page

opinion. See United States v. Bahlul, 820 F. Supp. 2d 1141

(2011). Bahlul then appealed to this Court.

While Bahlul’s appeal was pending, this Court held that

the 2006 MCA “does not authorize retroactive prosecution for

conduct committed before enactment of that Act unless the

conduct was already prohibited under existing U.S. law as a

war crime triable by military commission.” Hamdan v.

United States (Hamdan II), 696 F.3d 1238, 1248 (D.C. Cir.

2012) (emphasis in original). The Court declared that

providing material support for terrorism—the only charge at

issue in that appeal—was not a pre-existing war crime triable

by military commission; it therefore vacated Hamdan’s

conviction on that offense. Id. at 1248–53. The Government

subsequently conceded that Hamdan II’s reasoning required

vacatur of all three of Bahlul’s convictions. Based on that

concession, a panel of this Court vacated the convictions.

Order, Bahlul v. United States, No. 11-1324, 2013 WL

297726 (D.C. Cir. Jan. 25, 2013). We subsequently granted

the Government’s petition for rehearing en banc.

3

Under the 2006 MCA, a military commission “may be

convened by the Secretary of Defense or by any officer or official

of the United States designated by the Secretary for that purpose.”

10 U.S.C. § 948h. Crawford, a former judge of the United States

Court of Appeals for the Armed Forces, was so designated by the

Defense Secretary. The convening authority refers the charges

against the accused for trial by military commission, details the

members of the commission and approves or disapproves the

findings and sentence of the commission. Id. §§ 948i(b), 950b; cf.

Hamdan, 548 U.S. at 647–49 (Kennedy, J., concurring) (explaining

role of convening authority under UCMJ).

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II. Standard of Review

Bahlul argues that the 2006 MCA must be construed to

make triable by military commission only those crimes that

were recognized under the international law of war when

committed. He further contends that, if the 2006 MCA

authorizes retroactive prosecution of new law-of-war offenses

by military commission, his convictions violate the Ex Post

Facto Clause. Bahlul made neither of these arguments before

the military commission.

“ ‘No procedural principle is more familiar to this Court

than that a constitutional right,’ or a right of any other sort,

‘may be forfeited in criminal as well as civil cases by the

failure to make timely assertion of the right before a tribunal

having jurisdiction to determine it.’ ” United States v. Olano,

507 U.S. 725, 731 (1993) (quoting Yakus v. United States,

321 U.S. 414, 444 (1944)). This fundamental principle of

appellate review generally bars a party who failed to preserve

an argument in a lower tribunal from raising it on appeal

absent plain error or exceptional circumstances. See United

States v. Atkinson, 297 U.S. 157, 159 (1936); Salazar ex rel.

Salazar v. Dist. of Columbia, 602 F.3d 431, 437 (D.C. Cir.

2010).

To preserve error for appellate review, an appellant must

interpose a “timely” objection, United States v. Simpson, 430

F.3d 1177, 1183 (D.C. Cir. 2005), and “state the specific

ground for [the] objection,” United States v. Boyd, 54 F.3d

868, 872 (D.C. Cir. 1995). Although he need not “cite the

particular case that supports his position,” United States v.

Rashad, 396 F.3d 398, 401 (D.C. Cir. 2005), he must state the

ground for his objection “with sufficient precision to indicate

distinctly [his] thesis,” Miller v. Avirom, 384 F.2d 319, 322

(D.C. Cir. 1967). Thus, “[a]n objection is not properly raised

11

if it is couched in terms too general to have alerted the trial

court to the substance of the petitioner’s point.” United States

v. Breedlove, 204 F.3d 267, 270 (D.C. Cir. 2000); see also

Noonan v. Caledonia Gold Min. Co., 121 U.S. 393, 400

(1887) (“The rule is universal, that where an objection is so

general as not to indicate the specific grounds upon which it is

made, it is unavailing on appeal, unless it be of such a

character that it could not have been obviated at the trial.”).

The contemporaneous-objection rule is not mere

“obeisance to ritual.” Miller, 384 F.2d at 322. It serves two

purposes. First, the rule promotes judicial efficiency by

giving the trial tribunal the opportunity to quickly and

efficiently resolve errors that would otherwise require

burdensome and unnecessary appellate review and remand.

See Puckett v. United States, 556 U.S. 129, 134 (2009).

Second, the rule discourages the intentional withholding of an

objection by a party to be raised on appeal only if he loses at

trial. See id.; see also Wainwright v. Sykes, 433 U.S. 72, 89

(1977); Hormel v. Helvering, 312 U.S. 552, 556 (1941);

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238–

39 (1940) (citing Crumpton v. United States, 138 U.S. 361,

364 (1891)).

To mitigate the sometimes harsh results of the forfeiture

rule in criminal cases, the Congress authorizes the court of

appeals to exercise its discretion to notice and correct a

certain type of forfeited error: “plain error.” FED. R. CRIM. P.

52(b); see United States v. Young, 470 U.S. 1, 15 (1985); see

also 10 U.S.C. § 950a(a) (Supp. III 2010) (Military

Commissions Act of 2009 review provision specifying that

only errors that “materially prejudice[] the substantial rights

12

of the accused” may be corrected).4 A plain error is “[1] an

‘error’ [2] that is ‘plain’ and [3] that ‘affect[s] substantial

rights.’ ” Olano, 507 U.S. at 732 (quoting FED. R. CRIM P.

52(b)) (final alteration in original). “If all three conditions are

met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” Johnson v. United States, 520 U.S. 461, 467

(1997) (quotation marks and brackets omitted). Plain-error

review, however, is “highly circumscribed.” United States v.

Brinson-Scott, 714 F.3d 616, 625 (D.C. Cir. 2013); see also

Puckett, 556 U.S. at 134 (“Meeting all four prongs is difficult,

as it should be.” (quotation marks omitted)); Young, 470 U.S.

at 15 (“[T]he plain-error exception to the contemporaneous-

objection rule is to be used sparingly, solely in those

circumstances in which a miscarriage of justice would

otherwise result.” (quotation marks omitted)). “There is good

reason for this; anyone familiar with the work of courts

understands that errors are a constant in the trial process, that

most do not much matter, and that a reflexive inclination by

appellate courts to reverse because of unpreserved error

would be fatal” to the policies furthered by the

contemporaneous-objection rule. Puckett, 556 U.S. at 134

(quotation marks omitted). We therefore must guard against

“unwarranted extension of this exacting definition of plain

error.” Young, 470 U.S. at 15.5

4

We need not decide whether Rule 52(b) applies directly to

this proceeding because plain-error review is appropriate whether

or not Rule 52(b) directly governs. See Salazar, 602 F.3d at 437.

5

The Government argued for plain-error review before the

CMCR, in its original brief to a panel of this Court and in its brief

to the en banc court. See Bahlul, 820 F. Supp. 2d at 1256–58; Br.

of the United States 65, Bahlul v. United States, No. 11-1324 (D.C.

Cir. May 16, 2012) (Panel Br.); Br. of the United States 63, Bahlul

13

Applying these principles here, we conclude that Bahlul

forfeited the arguments he now raises. He flatly refused to

participate in the military commission proceedings and

instructed his trial counsel not to present a substantive

defense. Although he objected to the commission’s authority

to try him, his objection was couched entirely in political and

religious terms. He disclaimed guilt and contended that “what

[he] did was not a crime.” Trial Tr. 175. But context makes

clear that Bahlul argued that his acts were not criminal

because they were inspired by religious fervor. See id. at

175–76. After claiming that the United States had “put on the

side[] the meaningless American laws” and “legislated new

laws” for “the planet Earth,” he explained that he “believe[s]

that no one has the right in the land to set laws for the people,

the right of legislating laws[] is absolutely to Allah, the All

Mighty.” Id. at 23–24. Bahlul did ask a “legal question”

about whether the “law here by you stems from the action,

before action, or post action,” id. at 104, but the military

judge could not ascertain what Bahlul was asking and Bahlul

did not elaborate. Bahlul’s objection to the commission’s

authority was unquestionably “too general to have alerted the

trial court to the substance of [his] point.” United States v.

Bolla, 346 F.3d 1148, 1152 (D.C. Cir. 2003) (Roberts, J.)

v. United States, No. 11-1324 (D.C. Cir. July 10, 2013) (E.B. Br.).

We reject Bahlul’s contention that the Government abandoned its

forfeiture argument by conceding in its supplemental brief to the

panel after Hamdan II that Bahlul’s convictions should be vacated.

That brief was directed to a panel of this Court, which was bound

by Hamdan II’s avoidance of the ex post facto issue. See Hamdan

II, 696 F.3d at 1248 n.7. Only at the en banc stage was it possible

for the Government to attack Hamdan II’s statutory construction

and therefore put the Ex Post Facto Clause—and the applicable

standard of review—back in play.

14

(quotation marks omitted); Breedlove, 204 F.3d at 270.

Accordingly, we review his convictions for plain error.6

6

Three of our colleagues cite Rules 905 and 907 of the Rules

of Military Commissions for the notion that Bahlul’s ex post facto

argument is “not forfeitable.” Opinion of Judge Kavanaugh

(Kavanaugh Op.) 31; accord Opinion of Judge Rogers (Rogers Op.)

26–27; Opinion of Judge Brown (Brown Op.) 2. Bahlul’s briefs do

not mention these rules or suggest this argument. Moreover, Rules

905 and 907 both explicitly refer to waiver, see MANUAL FOR

MILITARY COMMISSIONS, pt. II, at 83–84, 87 (2007), whereas we

conclude instead that Bahlul forfeited his argument. “Although

jurists often use the words interchangeably,” Kontrick v. Ryan, 540

U.S. 443, 458 n.13 (2004), waiver and forfeiture are not the same,

see Olano, 507 U.S. at 733; see also United States v. Weathers, 186

F.3d 948, 955 (D.C. Cir. 1999) (explaining difference while

interpreting similar provision in Federal Rules of Criminal

Procedure regarding waiver of pretrial motions). Nor is Bahlul’s ex

post facto argument “jurisdictional.” See Rogers Op. 26; Brown

Op. 2; Kavanaugh Op. 31. As discussed infra pp. 16–17, the 2006

MCA explicitly confers jurisdiction on military commissions to try

the charged offenses. The question whether that Act is

unconstitutional does not involve “ ‘the courts’ statutory or

constitutional power to adjudicate the case.’ ” United States v.

Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 89 (1998)); United States v. Williams,

341 U.S. 58, 66 (1951) (“Even the unconstitutionality of the statute

under which the proceeding is brought does not oust a court of

jurisdiction.”); Lamar v. United States, 240 U.S. 60, 65 (1916)

(“The objection that the indictment does not charge a crime against

the United States goes only to the merits of the case.”); see also

United States v. Delgado-Garcia, 374 F.3d 1337, 1342–43 (D.C.

Cir. 2004) (explaining limits of so-called “Blackledge/Menna”

exception relied on by Bahlul). Nor are we persuaded that Bahlul’s

ex post facto argument is non-forfeitable because it amounts to an

argument that the indictment fails to “allege an offense.” Rogers

Op. 27; Kavanaugh Op. 32. Failure to state an offense is simply

another way of saying there is a defect in the indictment—as

15

Two of our colleagues contend that, by applying only

plain-error review, we have provided insufficient clarity in

this case. They argue that the Executive Branch’s need for

guidance in this area warrants de novo review. Brown Op. 1,

24; Kavanaugh Op. 34. But the Government itself has asked

that we apply plain-error review. E.B. Br. of the United

States 63. Indeed, at oral argument, it insisted that we do so,

notwithstanding the potential lack of “clarity” that such

review might entail. Oral Arg. Tr. 45.

III. Statutory Analysis

As noted, Hamdan II held that the 2006 MCA “does not

authorize retroactive prosecution for conduct committed

before enactment of that Act unless the conduct was already

prohibited under existing U.S. law as a war crime triable by

military commission.” 696 F.3d at 1248. Because we

conclude, for the reasons that follow, that the 2006 MCA is

unambiguous in its intent to authorize retroactive prosecution

for the crimes enumerated in the statute—regardless of their

pre-existing law-of-war status—we now overrule Hamdan

II’s statutory holding. See United States v. Burwell, 690 F.3d

500, 504 (D.C. Cir. 2012) (en banc); Critical Mass Energy

Project v. NRC, 975 F.2d 871, 876 (D.C. Cir. 1992) (en banc);

evidenced by Rule 907’s cross-reference to Rule 307(c), which sets

forth the criteria for charges and specifications. See MANUAL FOR

MILITARY COMMISSIONS, pt. II, at 15–16; see also Delgado-

Garcia, 374 F.3d at 1341–42 (“[T]he question of an indictment’s

failure to state an offense is an issue that goes to the merits of a

case . . . .”). As Cotton makes clear, such a claim can be forfeited.

535 U.S. at 630–31.

16

Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d

1516, 1524 (D.C. Cir. 1988) (en banc).7

A. The 2006 MCA is Unambiguous

The 2006 MCA confers jurisdiction on military

commissions to try “any offense made punishable by this

chapter or the law of war when committed by an alien

unlawful enemy combatant before, on, or after September 11,

2001.” 10 U.S.C. § 948d(a) (2006) (emphases added).

“Any,” in this context, means “all.” See OXFORD ENGLISH

DICTIONARY 539 (2d ed. 1989) (“indifference as to the

particular one or ones that may be selected”); see also Dep’t

of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 131

(2002); United States v. Gonzales, 520 U.S. 1, 5 (1997). The

“offense[s] made punishable by this chapter” include the

charges of which Bahlul was convicted: conspiracy to commit

war crimes, providing material support for terrorism and

solicitation of others to commit war crimes. 10 U.S.C.

§§ 950u, 950v(b)(25), 950v(b)(28) (2006). There could

hardly be a clearer statement of the Congress’s intent to

confer jurisdiction on military commissions to try the

enumerated crimes regardless whether they occurred “before,

on, or after September 11, 2001.” And the provisions of the

statute enumerating the crimes triable thereunder expressly

“do not preclude trial for crimes that occurred before the date

of the enactment of this chapter.” 10 U.S.C. § 950p(b)

(2006). For good reason: If it were otherwise, section 948d’s

conferral of jurisdiction to prosecute the enumerated crimes

occurring on or before September 11, 2001 would be

7

Although perhaps uncommon, overruling our precedent on

plain-error review is within the authority of the en banc court. See,

e.g., United States v. Padilla, 415 F.3d 211, 217–18 (1st Cir. 2005)

(en banc) (recognizing power of en banc court to overrule circuit

precedent under plain-error review but declining to do so).

17

inoperative. See Corley v. United States, 556 U.S. 303, 314

(2009) (“A statute should be construed so that effect is given

to all its provisions, so that no part will be inoperative or

superfluous, void or insignificant.” (quotation marks, brackets

and ellipsis omitted)). Although we presume that statutes

apply only prospectively “absent clear congressional intent”

to the contrary, that presumption is overcome by the clear

language of the 2006 MCA. Landgraf v. USI Film Prods.,

511 U.S. 244, 280 (1994); see also Johnson v. United States,

529 U.S. 694, 701 (2000) (clear statement of intent overcomes

presumption against retroactivity); Martin v. Hadix, 527 U.S.

343, 353–54 (1999) (“ ‘unambiguous directive’ or ‘express

command’ ” overcomes presumption against retroactivity);

Reynolds v. M’Arthur, 27 U.S. (2 Pet.) 417, 434 (1829)

(Marshall, C.J.) (“[L]aws by which human action is to be

regulated . . . are never to be construed retrospectively unless

the language of the act shall render such construction

indispensable.”).

Review of the inter-branch dialogue which brought about

the 2006 MCA confirms the Congress’s intent to apply all of

the statute’s enumerated crimes retroactively. See

Boumediene v. Bush, 553 U.S. 723, 738 (2008)

(“acknowledg[ing] . . . the litigation history that prompted

Congress to enact the MCA”). In Hamdan v. Rumsfeld, 548

U.S. 557 (2006), the Supreme Court considered the

President’s order that a military commission try Hamdan, a

Guantanamo detainee, for one of the very crimes of which

Bahlul was convicted: conspiracy to commit war crimes.

Hamdan challenged the President’s authority to convene the

military commission by petitioning for habeas corpus relief

and the Supreme Court’s resulting decision initiated two

games of interpretive ping-pong between the judiciary and the

legislature. One involves the issue presented here: whether

conspiracy is triable by a law-of-war military commission. In

18

Hamdan, four justices concluded that it was not triable under

the extant statute (section 821) and three concluded that it

was. Compare Hamdan, 548 U.S. at 603–13 (plurality

opinion of Stevens, J.), with id. at 697–704 (Thomas, J.,

dissenting). Four justices also “specifically invited Congress

to clarify the scope of the President’s statutory authority to

use military commissions to try unlawful alien enemy

combatants for war crimes.” Hamdan II, 696 F.3d at 1243;

see Hamdan, 548 U.S. at 636 (Breyer, J., concurring)

(“Nothing prevents the President from returning to Congress

to seek the authority he believes necessary.”); id. at 637

(Kennedy, J., concurring) (“If Congress, after due

consideration, deems it appropriate to change the controlling

statutes, in conformance with the Constitution and other laws,

it has the power and prerogative to do so.”).

The Congress answered the Court’s invitation with the

2006 MCA, which provides the President the very power he

sought to exercise in Hamdan—the power to try the 9/11

perpetrators for conspiracy—by including conspiracy as an

offense triable by military commission, 10 U.S.C.

§ 950v(b)(28) (2006), and by conferring jurisdiction on

military commissions to try alien unlawful enemy combatants

for conspiracy based on conduct that occurred “before, on, or

after September 11, 2001,” id. § 948d(a). We must heed this

inter-branch dialogue, as Boumediene instructs. 553 U.S. at

738.

If this sounds familiar, it does so because it mirrors a

second game of interpretive ping-pong begun in Hamdan.

There, the Court also addressed the Government’s contention

that section 1005(e)(1) of the Detainee Treatment Act of 2005

(DTA), Pub. L. 109-148, 119 Stat. 2739, 2741–42—enacted

after the Court’s grant of certiorari in Hamdan—ousted it of

jurisdiction to entertain Hamdan’s habeas petition. Hamdan,

19

548 U.S. at 572. After a lengthy statutory analysis, the Court

construed the DTA to apply only to petitions filed after the

DTA’s enactment and, because Hamdan’s petition was filed

before, the statute did not apply. Id. at 576–84. In construing

the DTA as it did, the Court avoided addressing “grave

questions about Congress’ authority to impinge upon this

Court’s appellate jurisdiction, particularly in habeas cases”

and whether the Congress had unconstitutionally suspended

the writ of habeas corpus. Id. at 575. Although the Court

relied on “[o]rdinary principles of statutory construction” to

reach its result, id., its practical message to the Congress was

clear: Stripping the courts of jurisdiction over detainees’

pending habeas petitions must be done unambiguously. Three

justices dissented, arguing that the DTA was already

unambiguous in its intent to repeal the Court’s jurisdiction.

Id. at 656–69 (Scalia, J., dissenting).

The Congress returned serve in the 2006 MCA. Section

7(b) clarified that the bar to habeas jurisdiction applied to “all

cases, without exception, pending on or after the date” of the

statute’s enactment. 2006 MCA, § 7(b), 120 Stat. at 2636.

Two years later, a detainee whose habeas petition was

pending at the time of the 2006 MCA’s enactment argued that

the statute did not apply to his case because section 7(b) was

not a “sufficiently clear statement of congressional intent to

strip the federal courts of jurisdiction in pending cases.”

Boumediene, 553 U.S. at 737. This time, the Court rejected

the argument. It explained:

If the Court invokes a clear statement rule to advise

that certain statutory interpretations are favored in

order to avoid constitutional difficulties, Congress

can make an informed legislative choice either to

amend the statute or to retain its existing text. If

Congress amends, its intent must be respected even if

20

a difficult constitutional question is presented. The

usual presumption is that Members of Congress, in

accord with their oath of office, considered the

constitutional issue and determined the amended

statute to be a lawful one; and the Judiciary, in light

of that determination, proceeds to its own

independent judgment on the constitutional question

when required to do so in a proper case.

If this ongoing dialogue between and among the

branches of Government is to be respected, we

cannot ignore that the MCA was a direct response to

Hamdan’s holding that the DTA’s jurisdiction-

stripping provision had no application to pending

cases.

Id. at 738 (emphases added). Having avoided the Suspension

Clause issue in Hamdan by virtue of its construction of the

statute and having been answered by the Congress’s

reenactment of its retroactive intent, the Court had no choice

but to resolve the difficult constitutional question presented

(whether the MCA violated the Suspension Clause).

The same thing happened here. In enacting the military

commission provisions of the 2006 MCA, the Congress

plainly intended to give the President the power which

Hamdan held it had not previously supplied—just as the 2006

MCA clarified that in fact the Congress did intend section

7(b)’s ouster of habeas jurisdiction to apply to pending cases.

The legislative history confirms this view. See Boumediene,

553 U.S. at 739 (“The Court of Appeals was correct to take

note of the legislative history when construing the statute . . .

.”). Supporters and opponents of the legislation alike agreed

that the 2006 MCA’s purpose was to authorize the trial by

21

military commission of the 9/11 conspirators.8 And because

the 9/11 conspiracy took place long before 2006, the statute

could accomplish its explicit purpose only if it applied to pre-

enactment conduct. As the Court itself made clear, “we

cannot ignore that the [2006] MCA was a direct response to

Hamdan’s holding.” Boumediene, 553 U.S. at 739.

Reading the MCA in this context and given the

unequivocal nature of its jurisdictional grant, we conclude the

8

The legislative history is overwhelmingly in favor of

retroactive application of the MCA’s provisions as a response to

Hamdan. See, e.g., 152 CONG. REC. H7533 (daily ed. Sept. 27,

2006) (statement of Rep. Hunter) (“I can’t think of a better way to

honor the fifth anniversary of September 11 than by establishing a

system to prosecute the terrorists who on that day murdered

thousands of innocent civilians . . . .”); id. (“Without [the 2006

MCA], the United States has no effective means to try and punish

the perpetrators of September 11, the attack on the USS Cole and

the embassy bombings.”); id. at H7536 (statement of Rep. Saxton)

(“We have carefully narrowed and crafted the provisions of this bill

to enable the United States to prosecute the perpetrators of the 1998

bombings of the American embassies in Kenya and Tanzania, the

2000 attack on the USS Cole, and other crimes that have been

committed.”); id. (“Importantly, this bill allows, as all Americans

believe it should, the criminal prosecutions of those who

purposefully and materially supported [the 9/11 conspiracy].”); id.

at H7545 (statement of Rep. Sensenbrenner) (“[The 2006 MCA] is

about prosecuting the most dangerous terrorists America has ever

confronted . . . like Khalid Sheik Mohammed, the mastermind of

the 9/11 attacks, or Ahbd al-Nashiri, who planned the attack on the

USS Cole.”); id. at H7552 (statement of Rep. Boehner); id. at

S10243 (statement of Sen. Frist) (“Until Congress passes [the 2006

MCA], terrorists such as Khalid Shaikh Mohammed cannot be tried

for war crimes . . . .”); cf. id. at H7536 (statement of Rep. Skelton)

(opposing 2006 MCA because it “creates” “ex post facto laws”).

22

2006 MCA unambiguously authorizes Bahlul’s prosecution

for the charged offenses based on pre-2006 conduct.

B. The Avoidance Canon is Inapplicable

Hamdan II’s contrary conclusion turned on the following

provision of the 2006 MCA:

(a) PURPOSE.—The provisions of this subchapter

codify offenses that have traditionally been triable by

military commissions. This chapter does not

establish new crimes that did not exist before its

enactment, but rather codifies those crimes for trial

by military commission.

(b) EFFECT.—Because the provisions of this

subchapter (including provisions that incorporate

definitions in other provisions of law) are declarative

of existing law, they do not preclude trial for crimes

that occurred before the date of the enactment of this

chapter.

10 U.S.C. § 950p (2006). In Hamdan II, the Court read this

provision to reflect the Congress’s “belie[f] that the Act

codified no new crimes and thus posed no ex post facto

problem.” 696 F.3d at 1247. Because the Congress was

wrong in its textually stated premise—i.e., the Act did codify

new war crimes—the Court found “at least something of an

ambiguity” in the statute. Id. at 1248. It then turned to the

avoidance canon to resolve the ambiguity, concluding that the

Congress intended to authorize retroactive prosecution only if

“the conduct was already prohibited under existing U.S. law

as a war crime triable by military commission.” Id.

23

The “avoidance canon” reflects a fundamental principle

of judicial restraint. See Ashwander v. TVA, 297 U.S. 288,

341–48 (1936) (Brandeis, J., concurring). But “[t]he canon of

constitutional avoidance comes into play only when, after the

application of ordinary textual analysis, the statute is found to

be susceptible of more than one construction; and the canon

functions as a means of choosing between them.” Clark v.

Martinez, 543 U.S. 371, 385 (2005) (emphasis in original);

see also Milavetz, Gallop & Milavetz, P.A. v. United States,

559 U.S. 229, 239 (2010). If, after applying ordinary

principles of textual analysis, the statute is not genuinely open

to two constructions, the “canon of constitutional avoidance

does not apply.” Gonzales v. Carhart, 550 U.S. 124, 154

(2007). Because the 2006 MCA unqualifiedly confers

jurisdiction on military commissions to try “any offense made

punishable by this chapter or the law of war when committed

by an alien unlawful enemy combatant before, on, or after

September 11, 2001,” 10 U.S.C. § 948d(a) (2006) (emphases

added), it is not “fairly possible” to read the statute to apply

only prospectively. United States v. Jin Fuey Moy, 241 U.S.

394, 401 (1916) (Holmes, J.).

Hamdan II perceived a “tight causal link between (i)

Congress’s belief that the statute codified only crimes under

pre-existing law and (ii) Congress’s statement that the new

statute could therefore apply to conduct before enactment.”

696 F.3d at 1247–48. We think that link plainly affirms the

Congress’s intent to apply the statute retroactively. “The

Congress is a coequal branch of government whose Members

take the same oath we do to uphold the Constitution of the

United States.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981).

We assume that, in meeting that oath, it “legislates in the light

of constitutional limitations.” Rust v. Sullivan, 500 U.S. 173,

191 (1991); see also Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

24

(1988); FTC v. Am. Tobacco Co., 264 U.S. 298, 305–06

(1924); United States v. Harris, 106 U.S. 629, 635 (1883);

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,

164 (1951) (Frankfurter, J., concurring). As section 950p

makes abundantly clear, the Congress made precisely that

assessment and, whether right or wrong, concluded that the

statute fell within the constitutional limits of its legislative

authority. See City of Boerne v. Flores, 521 U.S. 507, 535

(1997) (“When Congress acts within its sphere of power and

responsibilities, it has not just the right but the duty to make

its own informed judgment on the meaning and force of the

Constitution.”); 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.”). Indeed, the

legislative history reveals the breadth of the Congress’s

debate on the statute’s constitutionality. See, e.g., H.R. Rep.

No. 109-664, at 25 (“For the reasons stated in Justice

Thomas’s opinion [in Hamdan], the Committee [on Armed

Services] views conspiracy as a separate offense punishable

by military commissions.”).

The “ambiguity” Hamdan II identified was the

Congress’s failure to address what it “would . . . have wanted”

if it “had known that the Act was codifying some new

crimes.” 696 F.3d at 1247. In other words, Hamdan II found

the statute ambiguous because the Congress did not include in

the text of the statute alternative language in case it was

wrong in its reading of the law on which it premised its

legislation. But the Congress always legislates on the basis of

some set of facts or premises it believes to be true. It holds

hearings and investigates precisely for the purpose of

acquiring facts and then legislates on the basis of those facts.

Because it believes to be true the facts on which it bases its

25

legislation, the Congress seldom (if ever) includes instructions

on what to do if those facts are proven incorrect. Here, the

Congress authorized prosecution for “any offense made

punishable by” the 2006 MCA, including offenses based on

pre-enactment conduct, precisely because it believed that all

of the offenses were already triable by military commission.

The Congress’s plainly expressed belief about pre-enactment

law should govern our understanding of the Congress’s intent

expressed in the text of the statute. If judicial inquiry reveals

that the Congress was mistaken, it is not our task to rewrite

the statute to conform with the actual state of the law but

rather to strike it down insofar as the Congress’s mistake

renders the statute unconstitutional. See Ass’n of Am.

Railroads v. U.S. Dep’t of Transp., 721 F.3d 666, 673 n.7

(D.C. Cir. 2013) (“The constitutional avoidance canon is an

interpretive aid, not an invitation to rewrite statutes to satisfy

constitutional strictures.”), cert. granted (June 23, 2014).

Moreover, the avoidance canon ordinarily requires no

speculation into the Congress’s hypothetical intent: If the

statute’s text is ambiguous, we choose a constitutional

construction over an unconstitutional one. Here, however, the

“ambiguity” lies not in the text itself but in the text when read

in light of Hamdan II’s subsequent finding that the premise on

which the text is based is wrong. That is, the “ambiguity” lies

in the existence of matters unknown to the Congress. But

“[w]e cannot replace the actual text with speculation as to

Congress’ intent,” Magwood v. Patterson, 130 S. Ct. 2788,

2798 (2010), nor can we “divin[e] what Congress would have

wanted if it had thought of the situation before the court,”

Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2881

(2010); see also United States v. Public Utilities Comm’n of

Cal., 345 U.S. 295, 319 (1953) (Jackson, J., concurring)

(“Never having been a Congressman, I am handicapped in

that weird endeavor. That process seems to me not

26

interpretation of a statute but creation of a statute.”). For that

reason, “our inquiry focuses on an analysis of the textual

product of Congress’ efforts, not on speculation as to the

internal thought processes of its Members.” Carter v. United

States, 530 U.S. 255, 272 (2000); see also Gardner v. Collins,

27 U.S. (2 Pet.) 58, 93 (1829) (“What the legislative intention

was, can be derived only from the words they have used; and

we cannot speculate beyond the reasonable import of these

words.”).

Even if it may raise difficult constitutional questions, the

statutory text remains the gravamen of our interpretive

inquiry. See United States v. Raynor, 302 U.S. 540, 552

(1938). “Although [we] will often strain to construe

legislation so as to save it against constitutional attack,”

Aptheker v. Sec’y of State, 378 U.S. 500, 515 (1964)

(quotation marks omitted), a court cannot “rewrite a law to

conform it to constitutional requirements, for doing so would

constitute a serious invasion of the legislative domain,”

United States v. Stevens, 559 U.S. 460, 481 (2010) (quotation

marks, ellipsis and citations omitted). “Here the intention of

the Congress is revealed too distinctly to permit us to ignore it

because of mere misgivings as to power. The problem must

be faced and answered.” George Moore Ice Cream Co. v.

Rose, 289 U.S. 373, 379 (1933) (Cardozo, J.).

IV. Bahlul’s Ex Post Facto Challenge

Because the Congress’s intent to authorize retroactive

prosecution of the charged offenses is clear, we must address

Bahlul’s ex post facto argument. See Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.) (“Questions

may occur which we would gladly avoid; but we cannot avoid

them. All we can do is, to exercise our best judgment, and

conscientiously to perform our duty.”). As noted, we may

27

overturn Bahlul’s convictions only if they constitute plain

constitutional error.

The Constitution prohibits the Congress from enacting

any “ex post facto Law.” U.S. CONST. art. I, § 9, cl. 3. “The

phrase ex post facto law was a term of art with an established

meaning at the time of the framing.” Peugh v. United States,

133 S. Ct. 2072, 2081 (2013) (quoting Collins v. Youngblood,

497 U.S. 37, 41 (1990)) (quotation marks omitted). In Calder

v. Bull, Justice Chase set forth his understanding of that

meaning:

1st. Every law that makes an action, done before the

passing of the law, and which was innocent when

done, criminal; and punishes such action. 2nd. Every

law that aggravates a crime, or makes it greater than

it was, when committed. 3rd. Every law that changes

the punishment, and inflicts a greater punishment,

than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence,

and receives less, or different, testimony, than the

law required at the time of the commission of the

offence, in order to convict the offender.

3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.); see

Peugh, 133 S. Ct. at 2081 (reciting Justice Chase’s

formulation); Carmell v. Texas, 529 U.S. 513, 525 (2000)

(Supreme Court has “repeatedly endorsed” Justice Chase’s

formulation); see also id. at 537–39 (noting that Collins did

not eliminate Justice Chase’s fourth category).

In our order granting en banc review, we asked the

parties to brief whether the Ex Post Facto Clause applies in

cases involving aliens detained at Guantanamo. The

Government has taken the position that it does. Although we

28

are not obligated to accept the Government’s concession, see

Young v. United States, 315 U.S. 257, 258–59 (1942); United

States v. Baldwin, 563 F.3d 490, 491 (D.C. Cir. 2009), we

will assume without deciding that the Ex Post Facto Clause

applies at Guantanamo. In so doing, we are “not to be

understood as remotely intimating in any degree an opinion

on the question.” Petite v. United States, 361 U.S. 529, 531

(1960) (per curiam); see also Casey v. United States, 343 U.S.

808, 808 (1952) (per curiam) (“To accept in this case [the

Solicitor General’s] confession of error would not involve the

establishment of any precedent.”); United States v. Bell, 991

F.2d 1445, 1447–48 (8th Cir. 1993).9

A. Conspiracy

We reject Bahlul’s ex post facto challenge to his

conspiracy conviction for two independent and alternative

reasons. First, the conduct for which he was convicted was

already criminalized under 18 U.S.C. § 2332(b) (section

2332(b)) when Bahlul engaged in it. It is not “plain” that it

violates the Ex Post Facto Clause to try a pre-existing federal

criminal offense in a military commission and any difference

between the elements of that offense and the conspiracy

charge in the 2006 MCA does not seriously affect the

fairness, integrity or public reputation of judicial proceedings.

Second, it is not “plain” that conspiracy was not already

9

Were we to decide this issue de novo, Judge Henderson

would conclude that the Ex Post Facto Clause does not apply in

cases involving aliens detained at Guantanamo, for the reasons

stated in her separate concurring opinion. Chief Judge Garland and

Judges Tatel and Griffith would conclude that the Clause does

apply in such cases, for the reasons stated in the first two

paragraphs of Part II.B of Judge Rogers’s opinion and in Note 3 of

Judge Kavanaugh’s opinion.

29

triable by law-of-war military commission under 10 U.S.C.

§ 821 when Bahlul’s conduct occurred.

1. Section 2332(b)

Bahlul was convicted of conspiracy to commit seven war

crimes enumerated in the 2006 MCA, including the murder of

protected persons.10 Although the 2006 MCA post-dates

Bahlul’s conduct, section 2332(b) has long been on the books,

making it a crime to, “outside the United States,” “engage[] in

a conspiracy to kill[] a national of the United States.” 18

U.S.C. § 2332(b); see Omnibus Diplomatic Security and

Antiterrorism Act of 1986, Pub. L. No. 99-399, § 1202(a),

100 Stat. 853, 896. Section 2332(b) is not an offense triable

by military commission but, the Government argues, “[t]he

fact that the MCA provides a different forum for adjudicating

such conduct does not implicate ex post facto concerns.” E.B.

Br. of United States 67. We agree. See infra p. 53

(remanding to panel to determine Bahlul’s other constitutional

challenges).

The right to be tried in a particular forum is not the sort

of right the Ex Post Facto Clause protects. See Collins, 497

U.S. at 51. In Collins, the Supreme Court sifted through its

Ex Post Facto Clause precedent, noting that some cases had

10

Specifically, the 2006 MCA provides: “Any person subject

to this chapter who conspires to commit one or more substantive

offenses triable by military commission under this chapter, and who

knowingly does any overt act to effect the object of the conspiracy,

shall be punished . . . .” 10 U.S.C. § 950v(b)(28). The murder of

protected persons is the “intentional[]” killing of one or more

“protected persons.” Id. § 950v(b)(1). A protected person is “any

person entitled to protection under one or more of the Geneva

Conventions, including . . . civilians not taking an active part in

hostilities.” Id. § 950v(a)(2)(A).

30

said that a “procedural” change—i.e., a “change[] in the

procedures by which a criminal case is adjudicated”—may

violate the Ex Post Facto Clause if the change “affects

matters of substance” by “depriving a defendant of substantial

protections with which the existing law surrounds the person

accused of crime or arbitrarily infringing upon substantial

personal rights.” Id. at 45 (citations, brackets and quotation

marks omitted). The Court observed that such language had

“imported confusion” into its doctrine and it attempted to

reconcile that language so as to not enlarge the Ex Post Facto

Clause’s application beyond laws that “make innocent acts

criminal, alter the nature of the offense, or increase the

punishment.” Id. at 46. One case that could not be reconciled

was Thompson v. Utah, in which the Court had found that a

change in Utah law reducing the size of criminal juries from

12 to 8 persons violated the Ex Post Facto Clause by

depriving the defendant of “a substantial right involved in his

liberty.” 170 U.S. 343, 352–53 (1898). The Court overruled

Thompson in Collins, explaining that the reduced size of the

jury was not in fact an ex post facto violation because “[t]he

right to jury trial provided by the Sixth Amendment is

obviously a ‘substantial’ one, but it is not a right that has

anything to do with the definition of crimes, defenses, or

punishments, which is the concern of the Ex Post Facto

Clause.” Collins, 497 U.S. at 51.

Similarly, in Cook v. United States, the Court held that an

act vesting jurisdiction over a crime in a newly formed

judicial district does not violate the Ex Post Facto Clause

because “[i]t only . . . subjects the accused to trial in th[e new]

district rather than in the court of some other judicial district

established by the government against whose laws the offense

was committed. This does not alter the situation of the

defendants in respect to their offense or its consequences.”

138 U.S. 157, 183 (1891); accord Gut v. Minnesota, 76 U.S.

31

35, 38 (1869) (“An ex post facto law does not involve, in any

of its definitions, a change of the place of trial of an alleged

offence after its commission.”); see also Duncan v. Missouri,

152 U.S. 377, 382–83 (1894) (suggesting no ex post facto

violation where defendant’s appeal was heard by smaller

appellate panel than provided for at time of his offense).

It is therefore not a plain ex post facto violation to

transfer jurisdiction over a crime from an Article III court to a

military commission because such a transfer does not have

anything to do with the definition of the crime, the defenses or

the punishment. That is so regardless of the different

evidentiary rules that apply under the 2006 MCA. See

Carmell, 529 U.S. at 533 n.23 (change in “[o]rdinary rules of

evidence . . . do[es] not violate the [Ex Post Facto] Clause”);

id. at 542–47; Collins, 497 U.S. at 43 n.3; Beazell v. Ohio,

269 U.S. 167, 171 (1925); Thompson v. Missouri, 171 U.S.

380, 386–88 (1898); Hopt v. Utah, 110 U.S. 574, 589–90

(1884). Nor is this a case like Carmell, where a law

retroactively reduced the “quantum of evidence necessary to

sustain a conviction,” 529 U.S. at 530; the 2006 MCA

requires the Government to prove guilt beyond a reasonable

doubt, see 10 U.S.C. § 949l(c); see also Trial Tr. 233, 878

(military judge’s instructions to commission).11

11

Likewise, the greater maximum sentence provided in the

2006 MCA—the death penalty, as opposed to a maximum of life

imprisonment under section 2332(b)—does not present an ex post

facto problem. The Government did not seek the death penalty, see

Trial Tr. 958, and the military judge’s instructions to the

commission before sentencing specifically declared that “[t]he

maximum punishment that may be adjudged in this case is

confinement for life,” id. at 949. Further, the 2006 MCA requires a

12-member military commission if the death penalty is sought, see

10 U.S.C. § 949m(c), and Bahlul’s commission had only nine

members, see Trial Tr. 285. There was therefore no risk that the

32

Our inquiry is not ended, however, because the 2006

MCA conspiracy-to-murder-protected-persons charge and

section 2332(b) do not have identical elements. The

difference is a potential problem because the Ex Post Facto

Clause prohibits “retrospectively eliminating an element of

the offense” and thus “subvert[ing] the presumption of

innocence by reducing the number of elements [the

government] must prove to overcome that presumption.”

Carmell, 529 U.S. at 532. Both statutes require the existence

of a conspiracy and an overt act in furtherance thereof. See

18 U.S.C. § 2332(b)(2); 10 U.S.C. § 950v(b)(28) (2006); see

also Trial Tr. 846, 849–50 (military judge’s instructions to

commission). The 2006 MCA conspiracy charge is in one

sense more difficult to prove than section 2332(b) because it

applies only to alien unlawful enemy combatants engaged in

hostilities against the United States. See 10 U.S.C.

§§ 948b(a), 948c, 948d; see also Trial Tr. 843–45

(instructions). But the 2006 MCA charge is in two ways

easier to prove than a section 2332(b) charge. It does not

require that the conspiracy occur “outside the United States”

or that the conspiracy be to kill a “national of the United

States,” as section 2332(b) does. It simply requires a

conspiracy to murder “one or more protected persons.” Trial

Tr. 850–51 (instructions); see supra n.10 (providing MCA’s

definition of “protected person”). Although the two statutes

are quite similar, then, the 2006 MCA conspiracy charge

greater sentence included in the 2006 MCA affected Bahlul’s

sentence. See Peugh, 133 S. Ct. at 2082 (“The touchstone of this

Court’s inquiry is whether a given change in law presents a

sufficient risk of increasing the measure of punishment attached to

the covered crimes.” (quotation marks omitted)).

33

eliminates two elements required to convict a defendant under

section 2332(b).12

Nevertheless, Bahlul cannot bear his burden of

establishing that the elimination of the two elements

“seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.” Olano, 507 U.S. at 732

(quotation marks omitted); see United States v. Vonn, 535

U.S. 55, 62–63 (2002) (defendant bears burden of proving

Olano’s fourth prong); see also United States v. Johnson, 331

F.3d 962, 967 (D.C. Cir. 2003) (proceeding directly to fourth

prong if it can resolve appeal). He cannot satisfy the fourth

prong because the charges against him and the commission’s

findings necessarily included those elements and the evidence

supporting them was undisputed. To explain why requires

that we first discuss the most on-point Supreme Court

precedent.

In Johnson v. United States, the Supreme Court reviewed

a defendant’s conviction for perjury where the district court

had decided the issue of materiality itself rather than submit

that issue to the jury, as the Court’s precedent requires. 520

U.S. 461, 463 (1997). The defendant did not object, however,

so the Court reviewed his conviction for plain error. Because

the evidence of the missing materiality element was

12

To be clear, Bahlul was convicted of conspiracy as a stand-

alone offense that does not depend upon the completion of an

object offense. See Trial Tr. 848. He was not charged with

conspiracy as a theory of liability for a completed crime. See Trial

Tr. 109–12 (Government amended charge by striking allegation

that Bahlul joined “an enterprise of persons who share the common

criminal purpose that involved . . . the commission . . . of one or

more substantive offenses”); see also United States v. Ali, 718 F.3d

929, 941 (D.C. Cir. 2013) (noting difference between conspiracy as

stand-alone offense and conspiracy as theory of liability).

34

“overwhelming” and “essentially uncontroverted at trial,” the

Court concluded that the error, although plain, did not

seriously affect the fairness, integrity or public reputation of

judicial proceedings. Id. at 470; cf. Neder v. United States,

527 U.S. 1, 19 (1999) (failure to submit element to jury was

harmless error “where [the] defendant did not, and apparently

could not, bring forth facts contesting the omitted element”).

Similarly, in United States v. Cotton, the indictment failed to

charge the drug quantity involved in the offense, as the

Court’s precedent requires for any fact that enhances the

otherwise applicable statutory maximum sentence. 535 U.S.

625, 627–28 (2002). After the jury found the defendants

guilty of a narcotics conspiracy, the district court made drug

quantity findings that enhanced the defendants’ statutory

maximums. Id. at 628. This was “error” and it was “plain”

but the Court nevertheless upheld the convictions under

Olano’s fourth prong. Because the evidence of the requisite

drug quantity was “overwhelming” and “essentially

uncontroverted,” the Court concluded that “[t]he real threat

. . . to the fairness, integrity, and public reputation of judicial

proceedings would be if [the defendants] . . . were to receive a

sentence prescribed for those committing less substantial drug

offenses because of an error that was never objected to at

trial.” Id. at 633–34 (quotation marks omitted); accord

Johnson, 331 F.3d at 966–70; United States v. Webb, 255

F.3d 890, 899–902 (D.C. Cir. 2001).

Here, the evidence of the two missing elements was not

simply “overwhelming” and “essentially uncontroverted”—it

was entirely uncontroverted. Bahlul was charged with

committing numerous overt acts “in Afghanistan, Pakistan

and elsewhere” that furthered the conspiracy’s unlawful

objects; those objects included the murder of protected

persons. App. 122–25. He did not dispute that his conduct

occurred outside the United States nor did he dispute that the

35

purpose of the conspiracy was to murder United States

nationals. See Trial Tr. 167 (Bahlul: “And what I did . . . is to

kill Americans . . . .”); id. at 511–12 (“[Bahlul] does not

consider anybody protected person[s] or civilians. . . . [A]s

long as you’re a[n] American, you are a target.”). Indeed,

several witnesses testified that Bahlul considered all

Americans to be targets. Id. at 503, 512, 596, 653. The

commission was instructed on the overt acts allegedly

undertaken by Bahlul in furtherance of the conspiracy, see id.

at 846–47, and was instructed that one of the conspiracy’s

object offenses was the murder of protected persons, id. at

850. The commission specifically found that Bahlul

committed ten overt acts, all of which took place outside the

United States and several of which directly relate to the 9/11

attacks that killed thousands of United States nationals. App.

132–33. And it found that all seven of the alleged object

offenses, including murder of protected persons, were objects

of the conspiracy. App. 131. There is no scenario in which

the commission could have found that Bahlul committed these

overt acts yet rationally found that the conspiracy did not take

place outside the United States and did not have as an object

the murder of United States nationals. Accord Webb, 255

F.3d at 901. Although the commission was not specifically

instructed that it had to find these two elements, the overt acts

it did find Bahlul had committed necessarily included the two

elements and Bahlul did not, and does not, dispute either.

Therefore, although the 2006 MCA conspiracy offense, as

charged here, does “eliminat[e] an element of the offense,”

Carmell, 529 U.S. at 532, the omission did not seriously

affect the fairness, integrity, or public reputation of the

proceedings.

36

2. Section 821

When Bahlul committed the crimes of which he was

convicted, section 821 granted—and still grants—military

commissions jurisdiction “with respect to offenders or

offenses that by statute or by the law of war may be tried by

military commissions.” 10 U.S.C. § 821. Section 821 and its

predecessor statute have been on the books for nearly a

century. See Pub. L. No. 64-242, 39 Stat. 619, 653 (1916);

Pub. L. No. 66-242, 41 Stat. 759, 790 (1920); Pub. L. No. 81-

506, 64 Stat. 107, 115 (1950); Madsen v. Kinsella, 343 U.S.

341, 350–51 & n.17 (1952). We must therefore ascertain

whether conspiracy to commit war crimes was a “law of war”

offense triable by military commission under section 821

when Bahlul’s conduct occurred because, if so, Bahlul’s ex

post facto argument fails.

In answering this question, we do not write on a clean

slate. In Hamdan, seven justices of the Supreme Court

debated the question at length. Four justices concluded that

conspiracy is not triable by military commission under section

821. 548 U.S. at 603–13 (plurality opinion of Stevens, J.).

Three justices opined that it is. Id. at 697–704 (Thomas, J.,

dissenting). Both opinions scoured relevant international and

domestic authorities but neither position garnered a majority.

The case was resolved on other grounds and the eighth vote—

one justice was recused—left the conspiracy question for

another day, noting that the Congress may “provide further

guidance in this area.” See id. at 655 (Kennedy, J.,

concurring). In light of the uncertainty left by the split, it was

not “plain” error to try Bahlul for conspiracy by military

commission pursuant to section 821. See United States v.

Terrell, 696 F.3d 1257, 1260 (D.C. Cir. 2012) (plain error met

only if “its erroneous character” is established by “a clear

precedent in the Supreme Court or this circuit”).

37

The reason for the uncertainty is not only the divided

result in Hamdan but also the High Court’s failure to clearly

resolve a subsidiary question: What body of law is

encompassed by section 821’s reference to the “law of war”?

That dispute takes center stage here. Bahlul contends that

“law of war” means the international law of war, full stop.

The Government contends that we must look not only to

international precedent but also “the common law of war

developed in U.S. military tribunals.” E.B. Br. of United

States 28; see also Oral Arg. Tr. 15 (“[W]e believe the law of

war is the international law of war as supplemented by the

experience and practice of our wars and our wartime

tribunals.”). The answer is critical because the Government

asserts that conspiracy is not an international law-of-war

offense. See E.B. Br. of United States 34; Oral Arg. Tr. 15.

In Hamdan II, the Court said that “law of war” as used in

section 821 is a term of art that refers to the international law

of war. 696 F.3d at 1248; see also id. at 1252 (noting that

“U.S. precedents may inform the content of international

law”); cf. Kavanaugh Op. 11 n.5 (stating that Hamdan II’s

interpretation of section 821 “was not necessary to the

result”). Language in several Supreme Court opinions

supports that proposition. See, e.g., Quirin, 317 U.S. at 27–28

(“[T]his Court has recognized and applied 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 29

(describing law of war as “branch of international law”); see

also Hamdan, 548 U.S. at 603 (plurality) (citing Quirin and

describing offense alleged therein as being “recognized as an

offense against the law of war” both “in this country and

internationally”); id. at 610–11 (analyzing international law

sources); id. at 641 (Kennedy, J., concurring) (“[T]he law of

38

war . . . is the body of international law governing armed

conflict.” (citing Quirin, 317 U.S. at 28)); Madsen, 343 U.S.

at 354–55 (“The ‘law of war’ . . . includes at least that part of

the law of nations which defines the powers and duties of

belligerent powers occupying enemy territory pending the

establishment of civil government.”); Yamashita, 327 U.S. at

12–16 (analyzing international precedent in determining

whether offense was violation of law of war); Rogers Op. 6–7

(concluding on de novo review that section 821 refers to

international law of war). Several Executive Branch

interpretations and scholarly articles also support that reading.

See Hamdan II, 696 F.3d at 1248–49 & n.9 (collecting

citations).

On the other hand, section 821 might not be so limited

(as two of our colleagues would hold on de novo review). See

Brown Op. 3; Kavanaugh Op. 7–11; see also Hamdan, 548

U.S. at 689 (Thomas, J., dissenting) (“[W]hether an offense is

a violation of the law of war cognizable before a military

commission must be determined pursuant to the system of

common law applied by military tribunals . . . [which] 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.” (citations and

quotation marks omitted)). Significantly, both the Hamdan

plurality and dissent relied primarily on domestic precedent to

ascertain whether conspiracy could be tried under section 821.

See Hamdan, 548 U.S. at 603–09 (plurality); id. at 689–704

(Thomas, J., dissenting).13 There is also language in

Yamashita and Quirin that domestic precedent is an important

13

The Hamdan plurality did not expressly decide whether

section 821’s reference to the “law of war” is limited to the

international law of war. See Hamdan, 548 U.S. at 604–13

(plurality).

39

part of our inquiry. See Yamashita, 327 U.S. at 8 (“[The

Congress] adopted the system of military common law

applied by military tribunals so far as it should be recognized

and deemed applicable by the courts, and as further defined

and supplemented by the Hague Convention . . . .”); Quirin,

317 U.S. at 31–35, 42 n.14 (evaluating domestic precedent to

determine whether offense charged was law-of-war offense);

see also Madsen, 343 U.S. at 347–48. Moreover, as the

Supreme Court has explained, when the Congress enacted

section 821 and its predecessors, it intended to preserve, not

limit, the pre-existing jurisdiction of military commissions.

See Madsen, 343 U.S. at 352–53; Yamashita, 327 U.S. at 19–

20; see also Hamdan, 548 U.S. at 593 (majority) (“[T]he

Quirin Court recognized that Congress had simply preserved

what power, under the Constitution and the common law of

war, the President had had before 1916 to convene military

commissions—with the express condition that the President

and those under his command comply with the law of war.”).

It is therefore arguable that the Congress also intended to

incorporate military commission precedents predating section

821’s enactment. See 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.” (quoting Felix

Frankfurter, Some Reflections on the Reading of Statutes, 47

COLUM. L. REV. 527, 537 (1947))); Lorillard v. Pons, 434

U.S. 575, 581 (1978) (“[W]here, as here, Congress adopts a

new law incorporating sections of a prior law, Congress

normally can be presumed to have had knowledge of the

interpretation given to the incorporated law, at least insofar as

it affects the new statute.”).

Ultimately, we need not resolve de novo whether section

821 is limited to the international law of war. It is sufficient

for our purpose to say that, at the time of this appeal, the

40

answer to that question is not “obvious.” Olano, 507 U.S. at

734; see Henderson v. United States, 133 S. Ct. 1121, 1130–

31 (2013) (plainness of error determined at time of appeal).

As seven justices did in Hamdan, we look to domestic

wartime precedent to determine whether conspiracy has been

traditionally triable by military commission. That precedent

provides sufficient historical pedigree to sustain Bahlul’s

conviction on plain-error review.

Most notably, the individuals responsible for the

assassination of President Abraham Lincoln were charged

with a single offense—“combining, confederating, and

conspiring . . . to kill and murder . . . Abraham Lincoln”—and

were convicted of that offense by military commission.

General Court-Martial Order No. 356, War Dep’t (July 5,

1865), reprinted in H.R. DOC. NO. 55-314, at 696 (1899).14

The specification of the offense includes several paragraphs,

each of which sets forth a separate overt act done “in further

prosecution of the unlawful and traitorous conspiracy.” Id. at

697–98; see also THE ASSASSINATION OF PRESIDENT LINCOLN

AND THE TRIAL OF THE CONSPIRATORS 18–21 (New York,

Moore, Wilstach & Baldwin 1865). A federal district court

later denied three of the conspirators’ habeas petitions raising

jurisdictional objections to the commission. Ex Parte Mudd,

17 F. Cas. 954 (S.D. Fla. 1868).

President Andrew Johnson personally approved the

convictions. In doing so, he considered the jurisdictional

limits of military commissions: He asked Attorney General

James Speed whether the accused could be tried for

14

The Hamdan plurality interpreted this precedent as

convicting the conspirators only of the completed offense of

assassination, not inchoate conspiracy. Hamdan, 548 U.S. at 604

n.35 (plurality). But see id. at 699 n.12 (Thomas, J., dissenting)

(finding it clear that inchoate conspiracy was tried).

41

conspiracy in a military commission. In a lengthy opinion,

Attorney General Speed said they could. See Military

Commissions, 11 Op. Att’y Gen. 297 (1865). We think this

highest-level Executive Branch deliberation is worthy of

respect in construing the law of war. Cf. Sosa v. Alvarez-

Machain, 542 U.S. 692, 733–34 (2004) (looking “albeit

cautiously” to sources like “controlling executive . . . act[s]”

to ascertain current state of international law (quoting The

Paquete Habana, 175 U.S. 677, 700 (1900)); Tel-Oren v.

Libyan Arab Republic, 726 F.2d 774, 780 n.6 (D.C. Cir. 1984)

(Edwards, J., concurring) (Attorney General opinions not

binding but “entitled to some deference, especially where

judicial decisions construing a statute are lacking”). Granted,

the Attorney General’s framing of the question presented—

“whether the persons charged with the offence of having

assassinated the President can be tried before a military

tribunal”—casts some doubt on whether he was addressing

inchoate conspiracy or the offense of assassination. 11 Op.

Att’y Gen. at 297; see Hamdan, 548 U.S. at 604 n.35

(plurality). But the Attorney General’s opinion was written

after the commission had been convened and the convictions

had been approved; he would therefore have been aware that

the sole offense alleged was conspiracy.15 On the other hand,

15

Some doubt about the precise nature of the charge also

appears in the transcript of the conspirators’ trial. Thomas Ewing,

counsel for several of the defendants, objected to the ambiguity of

the charge, stating that “[t]here is but one charge, in form, against

the accused; but, in fact, there seem to be four charges, each

alleging the commission of a separate and distinct offense.” THE

ASSASSINATION OF PRESIDENT LINCOLN AND THE TRIAL OF THE

CONSPIRATORS, supra, at 244. He listed what he perceived to be

the four offenses charged: conspiracy, traitorously murdering

President Lincoln, traitorously assaulting with intent to kill

Secretary of State William Seward and lying in wait with intent to

traitorously murder then-Vice President Johnson. Id. at 244–45.

42

that the Attorney General’s opinion was written after the

convictions were approved may undermine its persuasive

value, as it could be viewed as a post hoc rationalization for a

decision already made.

Either way, the Lincoln conspirators’ trial was a matter of

paramount national importance and attracted intense public

scrutiny. Thus, when the Congress enacted section 821’s

predecessor—and “preserved what power, under the

Constitution and the common law of war, the President had

had before 1916 to convene military commissions,” Hamdan,

548 U.S. at 593 (majority)—it was no doubt familiar with at

least one high-profile example of a conspiracy charge tried by

a military commission. Because of the national prominence

of the case and the highest-level Executive Branch

involvement, we view the Lincoln conspirators’ trial as a

particularly significant precedent.16

The Judge Advocate responded that “[t]he general allegation is a

conspiracy” and that “[t]he pleadings proceed, after averring this

conspiracy, . . . to set forth clearly and specifically the part which it

is believed and alleged each one of them took in the execution of

that conspiracy.” Id. at 245; see also id. at 246–47 (further

discussion of the charge).

16

William Winthrop—the Blackstone of military law—also

concluded that conspiracy is an offense that is “both a crime against

society and a violation of the laws of war.” WINTHROP, MILITARY

LAW AND PRECEDENTS, supra, at 842; accord WILLIAM

WINTHROP, A DIGEST OF OPINIONS OF THE JUDGE ADVOCATE

GENERAL OF THE ARMY 328–29 (1880) (“[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”).

That said, although Winthrop based that conclusion in part on the

Lincoln conspirators’ case, he also relied on Civil War-era field

orders. WINTHROP, MILITARY LAW AND PRECEDENTS, supra, at

839 & n.5 (explaining different bases of military jurisdiction and

43

Also noteworthy is the World War II-era military

commission trial of several Nazi saboteurs who entered the

United States intending to destroy industrial facilities; they

were convicted of, inter alia, conspiracy to commit violations

of the law of war. See Quirin, 317 U.S. at 21–23. Although

the Supreme Court resolved the case on other grounds and

therefore did not review the validity of the conspiracy

conviction, the case remains another prominent example of a

conspiracy charge tried in a law-of-war military commission.

President Franklin D. Roosevelt, like President Johnson

before him, approved the charges. See 7 Fed. Reg. 5103-02

(July 7, 1942). Moreover, Quirin is not the sole example

from that era. See Colepaugh v. Looney, 235 F.2d 429, 431–

32 (10th Cir. 1956) (upholding conviction by military

commission of Nazi saboteur of conspiracy to commit offense

against law of war); General Order (G.O.) No. 52, War Dep’t

(July 7, 1945) (President Truman approves convictions of

Colepaugh conspirators), reprinted in Supp. Auth. 149–50;

Memo. of Law from Tom C. Clark, Assistant Att’y Gen., to

Major General Myron C. Kramer, Judge Advocate Gen., at 6

(Mar. 12, 1945), reprinted in Supp. Auth. 139 (opining, with

regard to Colepaugh case, that “it may be said to be well

established that a conspiracy to commit an offense against the

laws of war is itself an offense cognizable by a commission

administering military justice”). Finally, during the Korean

War, General Douglas MacArthur ordered that persons

accused of “conspiracies and agreements to commit . . .

violations of the laws and customs of war of general

citing cases of Henry Wirz, William Murphy, G. St. Leger Grenfel

and others as examples of criminal conspiracies tried by military

commission on combination of jurisdictional bases). The field

orders lack the high-level Executive Branch consultation of the

Lincoln conspirators’ case, however, and give us pause for

additional reasons discussed infra p. 46.

44

application” be tried by military commission. See Letter

Order, Gen. HQ, United Nations Command, Tokyo, Japan,

Trial of Accused War Criminals (Oct. 28, 1950) (Rules of

Criminal Procedure for Military Commissions, Rule 4).

We do not hold that these precedents conclusively

establish conspiracy as an offense triable by military

commission under section 821. After all, four justices

examined the same precedents and found them insufficiently

clear. Hamdan, 548 U.S. at 603–09 (plurality);17 cf. Marks v.

United States, 430 U.S. 188, 193 (1977). But there are two

differences between Hamdan and this case. First, the

elements of the conspiracy charge were not defined by statute

in Hamdan and therefore the plurality sought precedent that

was “plain and unambiguous.” 548 U.S. at 602. Here, the

Congress has positively identified conspiracy as a war crime.

We need not decide the effect of the Congress’s action,

however, because we rely on the second difference: The

Hamdan plurality’s review was de novo; our review is for

plain error. We think the historical practice of our wartime

tribunals is sufficient to make it not “obvious” that conspiracy

was not traditionally triable by law-of-war military

commission under section 821. Olano, 507 U.S. at 734. We

therefore conclude that any Ex Post Facto Clause error in

trying Bahlul on conspiracy to commit war crimes is not

plain. See United States v. Vizcaino, 202 F.3d 345, 348 (D.C.

Cir. 2000) (assuming error to decide it was not plain).

17

The Hamdan plurality thought Quirin suggested “that

conspiracy is not a violation of the law of war” because the Court’s

“analysis . . . placed special emphasis on the completion of [another

charged] offense; it took seriously the saboteurs’ argument that

there can be no violation of a law of war—at least not one triable by

military commission—without the actual commission of . . . a

‘hostile and warlike act.’ ” 548 U.S. at 606–07 (plurality).

45

B. Material Support

A different result obtains, however, regarding Bahlul’s

conviction of providing material support for terrorism.18 The

Government concedes that material support is not an

international law-of-war offense, see Oral Arg. Tr. 15; Panel

Br. of United States 50, 57, and we so held in Hamdan II, 696

F.3d at 1249–53. But, in contrast to conspiracy, the

Government offers little domestic precedent to support the

notion that material support or a sufficiently analogous

offense has historically been triable by military commission.

Although Bahlul carries the burden to establish plain error,

see United States v. Brown, 508 F.3d 1066, 1071 (D.C. Cir.

2007), we presume that in the unique context of the “domestic

common law of war”—wherein the Executive Branch shapes

the relevant precedent and individuals in its employ serve as

prosecutor, judge and jury—the Government can be expected

to direct us to the strongest historical precedents. What the

Government puts forth is inadequate.

18

The 2006 MCA provides: “Any person subject to this

chapter who provides material support or resources, knowing or

intending that they are to be used in preparation for, or in carrying

out, an act of terrorism . . . , or who intentionally provides material

support or resources to an international terrorist organization

engaged in hostilities against the United States, knowing that such

organization has engaged or engages in terrorism . . . , shall be

punished . . . .” 10 U.S.C. § 950v(b)(25). The provision cross-

references the Act’s prohibition of “terrorism,” which is defined as

an act that “kills or inflicts great bodily harm on one or more

protected persons, or . . . that evinces a wanton disregard for human

life, in a manner calculated to influence or affect the conduct of

government or civilian population by intimidation or coercion, or to

retaliate against government conduct.” Id. § 950v(b)(24).

46

The Government relies solely on a number of Civil War-

era field orders approving military commission convictions of

various offenses that, the Government contends, are

analogous to material support. Before delving into the

specifics of the orders, we note our skepticism that such

informal field precedent can serve as the sole basis for

concluding that a particular offense is triable by a law-of-war

military commission. Unlike the Lincoln conspirators’ and

Nazi saboteurs’ cases, which attracted national attention and

reflected the deliberations of highest-level Executive Branch

officials, the field precedents are terse recordings of

drumhead justice executed on or near the battlefield. Indeed,

several precedents cited by the Government for trying

material support and solicitation under the “law of war” were

issued by the same 1862 military commission that tried one

Henry Willing for the offense of “[b]eing a bad and dangerous

man.” G.O. No. 19, HQ, Dep’t of the Mississippi (Apr. 24,

1862), 1 THE WAR OF THE REBELLION, OFFICIAL RECORDS OF

THE UNION AND CONFEDERATE ARMIES (OR) ser. II, at 480–

81. In addition, the military commissions these orders

memorialize were not always models of due process.19 And,

as the Hamdan plurality explained, the Civil War

commissions “operated as both martial law or military

government tribunals and law-of-war commissions,” obliging

us to treat the precedents “with caution” because of their

unclear jurisdictional basis. 548 U.S. at 596 n.27 (plurality);

see also id. at 608.20

19

See Frank J. Williams & Nicole J. Benjamin, Military Trials

of Terrorists: From the Lincoln Conspirators to the Guantanamo

Inmates, 39 N. KY. L. REV. 609, 625 (2012); David Glazier,

Precedents Lost: The Neglected History of the Military

Commission, 46 VA. J. INT’L L. 5, 39–40 (2005).

20

See also Hamdan, 548 U.S. at 602 n.34 (plurality)

(explaining that because of “vagueness” concerns, “caution . . .

47

In any event, even if the law of war can be derived from

field precedents alone, none of the cited orders charges the

precise offense alleged here—providing material support for

terrorism. The Government nonetheless contends that the

material support charge “prohibits the same conduct, under a

modern label, as the traditional offense of joining with or

providing aid to guerrillas and other unlawful belligerents.”

E.B. Br. of United States 48. But we do not think the cited

field orders establish that such conduct was tried by law-of-

war military commissions during the Civil War.21

First, every precedent cited by the Government involves

offenses committed in Missouri, a border state; none is from a

state that seceded. See Dow v. Johnson, 100 U.S. 158, 164–

65 (1879) (observing that, during the Civil War, “[t]he people

of the loyal States . . . and the people of the Confederate

States . . . became enemies to each other, and . . .

[c]ommercial intercourse and correspondence between them

were prohibited . . . by the accepted doctrines of public law”);

McKinzie v. Hill, 51 Mo. 303, 307 (1873) (“[T]he principles

[regarding the duty of “total non-intercourse between the

belligerents”] have no application to the present case.

Missouri was not one of the States that joined in the

rebellion.”). The difference between a border state—whose

citizens owed a duty of loyalty to the United States—and a

state that seceded—whose citizens did not—is significant.

The crime of “aiding the enemy,” which includes as an

element the breach of a duty of loyalty owed to the United

States, had long been triable by military commission. See

must be exercised in the incremental development of common-law

crimes”); Hamdan II, 696 F.3d at 1250 n.10 (similar).

21

In reviewing this Civil War precedent, we hold only that it

does not sanction trying material support by military commission.

48

Hamdan II, 696 F.3d at 1245 n.4 (citing Hamdan, 548 U.S. at

600–01 n.32 (plurality)); WINTHROP, MILITARY LAW AND

PRECEDENTS, supra, at 839–40 (“offences in violation of the

laws and usages of war” subject to trial by law-of-war

military commission include “breaches of the law of non-

intercourse with the enemy, such as . . . furnishing them with

money, arms, provisions, medicines, &c”); see also 10 U.S.C.

§ 950v(b)(26) (2006) (codifying offense of aiding enemy to

include element of “breach of an allegiance or duty to the

United States”). The orders cited by the Government

frequently refer to the treasonous nature of the conduct,

implying a breach of loyalty. See, e.g., G.O. No. 9, HQ,

Dep’t of the Mississippi (Mar. 25, 1862), 1 OR ser. II, at 465–

66 (case of John Montgomery); id. at 467 (case of Joseph

Bollinger); G.O. No. 1, HQ, Dep’t of the Missouri (Jan. 1,

1862), 1 OR ser. II, at 248 (“[C]ertain acts of a treasonable

character such as conveying information to the enemy, acting

as spies, &c., are military offenses triable by military tribunals

and punishable by military authority.”); see also Young v.

United States, 97 U.S. 39, 62 (1877) (“[T]reason is a breach

of allegiance, and can be committed by him only who owes

allegiance . . . .” (quotation marks omitted)). The material

support offense charged here, which lacks a breach of loyalty

requirement, is plainly distinguishable from the “aiding the

enemy” precedent.

Second, several of the cited field orders appear to involve

offenses more akin to aiding and abetting a law-of-war

violation. See, e.g., G.O. No. 19, HQ, Dep’t of the

Mississippi (Apr. 24, 1862), 1 OR ser. II, at 478 (Matthew

Thompson convicted of “joining with, aiding and assisting [a]

band [of desperadoes] in the commission of acts of plunder,

robbery and abuse of the citizens of the State of Missouri”).

Aiding and abetting is a theory of criminal liability, not a

stand-alone offense like material support. See Ali, 718 F.3d at

49

936. As the Court said in Hamdan II, “aiding and abetting

terrorism prohibits different conduct, imposes different mens

rea requirements, and entails different causation standards

than material support for terrorism.” 696 F.3d at 1252. Thus,

“[i]f the Government wanted to charge [Bahlul] with aiding

and abetting terrorism . . . it should have done so.” Id.; see 10

U.S.C. § 950q(1) (2006) (one who “aids [or] abets” offense

proscribed by 2006 MCA is punishable as principal).

Third, other orders appear to involve the offense of

unlawful belligerency—that is, directly waging guerrilla

warfare. See, e.g., G.O. No. 15, HQ, Dep’t of the Mississippi

(Apr. 3, 1862), 1 OR ser. II, at 472–476 (approving

convictions of several men who each, not “being a soldier

belonging to any lawfully authorized and organized military

forces at war with the United States,” “t[ook] up arms as an

insurgent and commit[ted] acts of hostility against” United

States military forces); G.O. No. 9, HQ, Dep’t of the

Mississippi (Mar. 25, 1862), 1 OR ser. II, at 464–65 (William

Kirk convicted of “belong[ing] to a marauding or guerrilla

band” that “did unlawfully plunder and take away a certain

yoke of oxen, wagon and other property”); see also

Instructions for the Government of Armies of the United

States in the Field, G.O. No. 100, art. 82 (Apr. 24, 1863);

WINTHROP, MILITARY LAW AND PRECEDENTS, supra, at 840.

The upshot is that the Civil War field precedent is too

distinguishable and imprecise to provide the sole basis for

concluding that providing material support for terrorism was

triable by law-of-war military commission at the time of

Bahlul’s conduct.22 We therefore think it was a plain ex post

22

Even the Government is dubious of its argument: Executive

Branch officials previously acknowledged in prepared

congressional testimony that “there are serious questions as to

50

facto violation—again, assuming without deciding that the

protection of the Ex Post Facto Clause extends to Bahlul, see

supra pp. 26–27—to try Bahlul by military commission for

that new offense. See Collins, 497 U.S. at 42–43. The error

is prejudicial and we exercise our discretion to correct it by

vacating Bahlul’s material support conviction. Olano, 507

U.S. at 734–36; see also Casey, 343 U.S. at 808 (vacating

conviction based on Government’s confession of error);

United States v. Law, 528 F.3d 888, 909 (D.C. Cir. 2008)

(same); cf. Petite, 361 U.S. at 531 (vacating conviction based

on Government’s motion).23

whether material support for terrorism or terrorist groups is a

traditional violation of the law of war.” Legal Issues Regarding

Military Commissions and the Trial of Detainees for Violations of

the Law of War: Hearing Before the S. Comm. on Armed Services,

111th Cong. 12 (2009) (statement of David Kris, Assistant Attorney

General, National Security Division, Department of Justice); see

also id. at 9 (statement of Jeh Johnson, General Counsel,

Department of Defense) (“After careful study, the administration

has concluded that appellate courts may find that ‘material support

for terrorism’—an offense that is also found in Title 18—is not a

traditional violation of the law of war.”).

23

Unlike with conspiracy, the Government has not identified a

pre-existing federal criminal statute that might cure any ex post

facto aspect of Bahlul’s material support conviction. The

Government cites 18 U.S.C. § 2339A, which criminalizes providing

material support or resources knowing they are to be used in a

violation of section 2332, but that offense was not made

extraterritorial until October 26, 2001. See Pub. L. No. 107-56,

§ 805(a)(1)(A), 115 Stat. 272, 377. Although Bahlul was not

captured until December 2001, nearly all of the conduct of which

he was convicted took place before September 11, 2001. The only

overt act that necessarily occurred after September 11 was Bahlul’s

research on the economic effects of the attack. The record does not

reflect, however, whether Bahlul committed that or any other act of

51

C. Solicitation

We also conclude that solicitation of others to commit

war crimes is plainly not an offense traditionally triable by

military commission.24 The Government concedes it is not an

international law-of-war offense. See Oral Arg. Tr. 15; Panel

Br. of United States 50, 57. The Government contends that

solicitation “possesses a venerable lineage as an offense

triable by military commission,” E.B. Br. of United States 50,

but it cites only two Civil War-era field orders involving three

defendants in support thereof. It mischaracterizes one of the

orders, asserting that “a military commission convicted

Francis Skinner of ‘counsel[ing]’ and ‘invit[ing]’ others to

destroy a railroad in violation of the law of war,” id., when in

fact Skinner was acquitted of that offense. See G.O. No. 19,

HQ, Dep’t of the Mississippi (Apr. 24, 1862), 1 OR ser. II, at

476–77. And although the other two defendants in the cited

cases were convicted on charges that resemble the 2006 MCA

solicitation offense, they were also convicted of personal

involvement in the crimes they solicited. See id. at 478

(James Barnes convicted of both “attack[ing] the dwelling-

house of one Thomas H. Keene . . . and with guns and pistols

attempt[ing] to murder the occupants of said house” and

“incit[ing] certain persons unknown to make” that attack);

G.O. No. 15, HQ, Dep’t of the Mississippi (Apr. 3, 1862), 1

material support constituting a violation of section 2339A after

October 26, 2001. This charge, then, is unlike the conspiracy

charge, where Bahlul expressly conceded and the jury necessarily

found the two omitted elements.

24

The 2006 MCA provides: “Any person subject to this

chapter who solicits or advises another or others to commit one or

more substantive offenses triable by military commission under this

chapter shall . . . be punished . . . .” 10 U.S.C. § 950u.

52

OR ser. II, at 475 (Edward Wingfield convicted of both

“assist[ing] and abet[ting] the said persons in the destruction

of the track, bridges and buildings of the [North Missouri

Railroad]” and “incit[ing], induc[ing] and procur[ing] the said

persons to take up arms and to commit acts of hostility against

the property of the United States”); cf. Hamdan, 548 U.S. at

609 (plurality).

As noted, we are skeptical that field orders can be the

sole basis for military commission jurisdiction over a

particular offense. See supra p. 46. Moreover, the two field

orders discussed fall far short of meeting any showing we

would require. Because solicitation to commit war crimes

was not an offense triable by law-of-war military commission

when Bahlul’s conduct occurred, it is a plain ex post facto

violation—again, assuming without deciding that the

protection of the Ex Post Facto Clause extends to Bahlul, see

supra pp. 26–27—to try him by military commission for that

new offense. See Collins, 497 U.S. at 42–43. The error is

prejudicial and we exercise our discretion to correct it by

vacating Bahlul’s solicitation conviction. Olano, 507 U.S. at

734–736; see also Casey, 343 U.S. at 808; Law, 528 F.3d at

909; cf. Petite, 361 U.S. at 531.25

25

As with material support, we cannot conclude that a pre-

existing federal statute might cure any ex post facto aspect of

Bahlul’s solicitation conviction. The Government notes that, when

Bahlul’s conduct occurred, 18 U.S.C. § 373 criminalized

solicitation of another person to “engage in conduct constituting a

felony that has as an element the use, attempted use, or threatened

use of physical force against property or against the person of

another.” The Government’s brief does not identify an offense that

Bahlul solicited, however, which it must do for us to compare the

elements of a pre-existing criminal offense with the elements of the

charge under the MCA.

53

V. Remaining Issues

In his brief to the panel, Bahlul raised four challenges to

his convictions that we have not addressed here. He argued

that (1) the Congress exceeded its Article I, § 8 authority by

defining crimes triable by military commission that are not

offenses under the international law of war, see Br. for Bahlul

38, Bahlul v. United States, No. 11-1324 (D.C. Cir. Mar. 9,

2012); (2) the Congress violated Article III by vesting

military commissions with jurisdiction to try crimes that are

not offenses under the international law of war, see id. at 39–

40; (3) his convictions violate the First Amendment, see id. at

43; and (4) the 2006 MCA discriminates against aliens in

violation of the equal protection component of the Due

Process Clause, see id. at 54. We intended neither the en

banc briefing nor argument to address these four issues. See

Order, Bahlul v. United States, No. 11-1324 (D.C. Cir. May 2,

2013) (notifying parties that Equal Protection and First

Amendment issues are not “within the scope of the rehearing

en banc”). And with the exception of a few passages

regarding the first two, we received none from the parties.

We therefore remand the case to the original panel of this

Court to dispose of Bahlul’s remaining challenges to his

conspiracy conviction. See United States v. McCoy, 313 F.3d

561, 562 (D.C. Cir. 2002) (en banc) (remanding outstanding

issue to panel).

For the foregoing reasons, we reject Bahlul’s ex post

facto challenge to his conspiracy conviction and remand that

conviction to the panel to consider his alternative challenges

thereto. In addition, we vacate Bahlul’s convictions of

providing material support for terrorism and solicitation of

others to commit war crimes, and, after panel consideration,

remand to the CMCR to determine the effect, if any, of the

two vacaturs on sentencing.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I write separately to emphasize, for me, the critical nature of

the Government’s concession that the Ex Post Facto Clause

protects Bahlul. Had the Government not conceded the point

and the Court not decided to act on the concession, cf. Young

v. United States, 315 U.S. 257, 258–59 (1942), I would have

reached a different conclusion. I briefly explain why.

I. It Is Not “Plain” That the Ex Post Facto Clause

Protects Bahlul

“ ‘Plain’ is synonymous with ‘clear’ or, equivalently,

‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734

(1993). Put another way, “the error must be ‘so plain the trial

judge and prosecutor were derelict in countenancing it, even

absent the defendant’s timely assistance in detecting it.’ ”

United States v. Saro, 24 F.3d 283, 286 (D.C. Cir. 1994)

(quoting United States v. Frady, 456 U.S. 152, 163 (1982)).

An error meets this high standard only if “its erroneous

character” is established by “a clear precedent in the Supreme

Court or this circuit.” United States v. Terrell, 696 F.3d 1257,

1260 (D.C. Cir. 2012). Indeed, “[r]arely do we find an error

to be plain where ‘this court has not ruled on the question.’ ”

United States v. Laureys, 653 F.3d 27, 32–33 (D.C. Cir. 2011)

(per curiam) (quoting United States v. Thomas, 896 F.2d 589,

591 (D.C. Cir. 1990)); see also United States v. Merlos, 8

F.3d 48, 51 (D.C. Cir. 1993) (error may be plain even in

absence of controlling precedent if trial court failed to follow

“legal norm[ that is] absolutely clear (for example, because of

the clarity of a statutory provision or court rule)”). To be

“plain,” the error must be clear or obvious at the time of

appeal. Henderson v. United States, 133 S. Ct. 1121, 1130–

31 (2013); United States v. Miller, 738 F.3d 361, 372 (D.C.

Cir. 2013).

Bahlul contends that his convictions are unconstitutional

because the 2006 MCA, as applied to him, is an ex post facto

2

law. Even assuming that Bahlul is correct, the error is not

plain because there is no holding by any court that an

unlawful alien enemy combatant detained abroad is entitled to

the protections of the Ex Post Facto Clause. Before

Boumediene, Johnson v. Eisentrager, 339 U.S. 763 (1950),

and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990),

“were thought to be the controlling Supreme Court cases on

the Constitution’s application to aliens abroad.” Rasul v.

Myers, 563 F.3d 527, 531 (D.C. Cir. 2009) (per curiam). In

Eisentrager, the Supreme Court held that the Fifth

Amendment did not apply to aliens with neither property nor

presence in the United States. 339 U.S. at 784. Verdugo-

Urquidez, relying on Eisentrager, held that the Fourth

Amendment did not apply to such aliens. 494 U.S. at 269,

273–75. Other Supreme Court opinions similarly suggested

that the Constitution did not apply outside the sovereign

United States. Zadyvas 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). We have followed those precedents consistently,

recognizing that the Fifth Amendment did not extend beyond

the boundaries of the United States. See, e.g., Jifry v. FAA,

370 F.3d 1174, 1182–83 (D.C. Cir. 2004); 32 Cnty.

Sovereignty Comm. v. Dep’t of State, 292 F.3d 797, 799 (D.C.

Cir. 2002); Harbury v. Deutch, 233 F.3d 596, 603–04 (D.C.

Cir. 2000), rev’d on other grounds sub nom. Christopher v.

Harbury, 536 U.S. 403 (2002); People’s Mojahedin Org. of

Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999).

In Boumediene, the Supreme Court for the first time in

our history extended a constitutional protection to an alien

located outside the sovereign territory of the United States.

553 U.S. at 770. But the Supreme Court “explicitly confined

its constitutional holding ‘only’ to the extraterritorial reach of

3

the Suspension Clause” and “disclaimed any intention to

disturb existing law governing the extraterritorial reach of any

constitutional provisions, other than the Suspension Clause.”

Rasul, 563 F.3d at 529 (quoting Boumediene, 553 U.S. at

795). Indeed, it remains the law of this circuit that, after

Boumediene, aliens detained at Guantanamo may not invoke

the protections of the Due Process Clause of the Fifth

Amendment. See Kiyemba v. Obama, 555 F.3d 1022, 1026 &

n.9 (D.C. Cir. 2009) (“due process clause does not apply to

aliens without property or presence in the sovereign territory

of the United States” and Guantanamo “is not part of the

sovereign territory of the United States”), vacated and

remanded, 559 U.S. 131 (2010), reinstated in relevant part,

605 F.3d 1046 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1631

(2011); see also Al-Madhwani v. Obama, 642 F.3d 1071,

1077 (D.C. Cir. 2011); Kiyemba v. Obama, 561 F.3d 509, 518

n.4 (D.C. Cir. 2009) (Kavanaugh, J., concurring); Cuban Am.

Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1428 (11th Cir.

1995) (Fifth Amendment does not apply to Cubans and

Haitians temporarily housed at Guantanamo). Whether

Boumediene in fact portends a sea change in the

extraterritorial application of the Constitution writ large, we

are bound to take the Supreme Court at its word when it limits

its holding to the Suspension Clause. See Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 480–81

(1989). Thus, the extraterritorial inapplicability of the Ex

Post Facto Clause remains as it was before Boumediene.

Bahlul points to no case from the Supreme Court or any

court of appeals, nor to any other “absolutely clear” legal

norm, opining that the Ex Post Facto Clause applies beyond

the sovereign territory of the United States. Finding such a

precedent would be a remarkable feat inasmuch as

Boumediene expressly recognized that it was the first case to

apply any constitutional provision to aliens located beyond

4

our sovereign territory: “It is true that before today the Court

has never held that noncitizens detained by our Government

in territory over which another country maintains de jure

sovereignty have any rights under our Constitution.” 553

U.S. at 770. Because there is no clear precedent establishing

that the Ex Post Facto Clause applies to aliens held at

Guantanamo, prosecuting Bahlul under the 2006 MCA cannot

constitute plain constitutional error.

II. The Ex Post Facto Clause Does Not Protect Bahlul

Even if our review were de novo, I would conclude that

the Ex Post Facto Clause does not apply to aliens detained at

Guantanamo. As discussed above, only one constitutional

protection applies to Guantanamo even after Boumediene.

553 U.S. at 795 (“Our decision today holds only that

petitioners before us are entitled to seek the writ.”); see Rasul,

563 F.3d at 529. Boumediene is the law and therefore it must

be followed. But before 2008, the Constitution did not apply

to aliens without property or presence in the United States.

After 2008, the Suspension Clause—and only the Suspension

Clause—protects only those aliens detained on the

southeastern tip of an island outside the sovereign United

States. We have previously said that, “[a]s 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.” Maqaleh v.

Hagel, 738 F.3d 312, 336 n.16 (D.C. Cir. 2013). I see no

reason to abandon that caution.

Finally, we must remember the who, what and where of

this case. Bahlul is an alien unlawful enemy combatant

who—like Hitler’s Goebbels—led Osama bin Laden’s

propaganda operation and freely admitted his role in the 9/11

5

atrocities. He was tried outside the sovereign United States

for war crimes. During the post-World War II Nuremberg

trials several defendants raised ex post facto objections but

they were rejected as “sheer absurdity” under international

law. 3 Trials of War Criminals Before the Nuremberg

Military Tribunals: “The Justice Case” 975 (1951). I cannot

agree that Bahlul is entitled to domestic constitutional

protections—to which he would not be entitled under

international law—simply because his war crimes trial was

held at an American naval base located in Cuba.

Accordingly, were it not for the Government’s

concession that the Ex Post Facto Clause protects Bahlul, I

would reach the issue and conclude that it does not.1

1

Responding briefly to Judge Kavanaugh’s concurrence, and

with respect, I believe he is a solo source of confusion. He persists

in reading the majority opinion to resuscitate Hamdan II. Cf.

Kavanaugh Op. 1. He is wrong. I leave it to the careful reader to

discern, not surprisingly, that the majority expressly overrules

Hamdan II’s statutory holding. See Majority Op. 15. Judge

Kavanaugh then pivots, calling the majority’s decision to

“ ‘overrule[]’ ” Hamdan II’s “statement” “a meaningless exercise.”

Kavanaugh Op. 27. Despite his best efforts at revisionism, the fact

of the matter is that Hamdan II was wrongly decided and today the

majority so holds.

ROGERS, Circuit Judge, concurring in the judgment in part

and dissenting. Ali Hamza Ahmad Suliman al Bahlul, a self-

avowed member of al Qaeda who has been held in the Naval

Base at Guantanamo Bay, Cuba since 2002, was convicted and

sentenced to life imprisonment by a military commission for

three offenses under the Military Commissions Act of 2006.

The question before the en banc court is whether these charges

support the jurisdiction of the military commission. See Order,

Apr. 23, 2013. Because Bahlul’s conduct occurred prior to the

enactment of the 2006 Act, and the military commission lacked

jurisdiction to try these non-law-of-war offenses, Bahlul’s

convictions must be vacated. The court is vacating Bahlul’s

convictions for material support and solicitation. For the

following reasons, I would also vacate Bahlul’s conviction for

inchoate conspiracy.

I.

In Hamdan v. Rumsfeld, 548 U.S. 557, 590 (2006), the

Supreme Court observed that “[t]he military commission, a

tribunal neither mentioned in the Constitution nor created by

statute, was born of military necessity.” Historically, such

commissions have been used in three situations. Id. at 595

(plurality op.); id. at 683 (Thomas, J., dissenting). First, they

have substituted for civilian courts where martial law has been

declared. Second, they have tried civilians in occupied enemy

territory or territory regained from an enemy where civilian

government cannot function. Third, military commissions have

been convened to try “enemies who in their attempt to thwart or

impede our military effort have violated the law of war.” Ex

Parte Quirin, 317 U.S. 1, 28–29 (1942). This third type of

military commission is designed “to determine, typically on the

battlefield itself, whether the defendant has violated the law of

war.” Hamdan, 548 U.S. at 596–97 (plurality op.); cf. id. at 641

(Kennedy, J., concurring in part). Its jurisdiction is thus limited

2

to “offenses cognizable during time of war.” Id. at 596

(plurality op.); see id. at 641 (Kennedy, J., concurring in part).

“Trial by military commission raises separation-of-powers

concerns of the highest order.” Id. at 638 (Kennedy, J.,

concurring in part). “Every extension of military jurisdiction is

an encroachment on the jurisdiction of the civil courts, and,

more important, acts as a deprivation of the right to jury trial and

of other treasured constitutional protections.” Reid v. Covert,

354 U.S. 1, 21 (1957) (plurality op.); see id. at 41 (Frankfurter,

J., concurring in result); see also THE FEDERALIST NO. 47, at 324

(James Madison) (J. Cooke ed., 1961) (warning against the

“tyranny” created through the “accumulation of all powers

legislative, executive and judiciary in the same hands”). A

statute conferring judicial power outside the Article III courts

“may no more lawfully chip away at the authority of the Judicial

Branch than it may eliminate it entirely. ‘Slight encroachments

create new boundaries from which legions of power can seek

new territory to capture.’” Stern v. Marshall, 131 S. Ct. 2594,

2620 (2011) (quoting Reid, 354 U.S. at 39 (plurality op.)). Even

when confronted with the exigencies of war, “[the Court] cannot

compromise the integrity of the system of separated powers and

the role of the Judiciary in that system.” Id.

The question presented by Bahlul’s appeal is the effect of

the 2006 Act on these settled principles. Given “the duty which

rests on the courts, in time of war as well as in time of peace, to

preserve unimpaired the constitutional safeguards of civil

liberty,” Quirin, 317 U.S. at 19, this court must assure itself that

the military commission had jurisdiction over the charged

offenses of which Bahlul was convicted. See Hamdan, 548 U.S.

at 611–12 (plurality op.); id. at 683 (Thomas, J., dissenting);

Application of Yamashita, 327 U.S. 1, 17–18 (1946); Quirin,

317 U.S. at 25; 10 U.S.C. § 950g(d). The court properly

considers a challenge to the jurisdiction of a military

3

commission at any time it is raised. See R.M.C. 907(b)(1), THE

MANUAL FOR MILITARY COMMISSIONS, at II-87 (2007) (“A

charge or specification shall be dismissed at any stage of the

proceedings if: (A) The military commission lacks jurisdiction

to try the accused for the offense”); cf. FED. R. CIV. P. 12(h)(3)

(“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action”); Arbaugh v.

Y&H Corp., 546 U.S. 500, 506 (2006) (“The objection that a

federal court lacks subject-matter jurisdiction, see FED. R. CIV.

P. 12(b)(1), may be raised by a party, or by a court on its own

initiative, at any stage in the litigation, even after trial and the

entry of judgment.”).

A.

Congress enacted the Military Commissions Act of 2006,

Pub. L. No. 109-366, 120 Stat. 2600, to authorize the

establishment of law-of-war military commissions and to

establish procedures governing their use. The 2006 Act

specifies the “[c]rimes triable by military commissions,” 10

U.S.C. § 950v, including offenses such as attacking civilians, id.

§ 950v(b)(2), taking hostages, id. § 950v(b)(7), and torture, id.

§ 950(b)(11). Congress included an unequivocal statement of

the purpose and effect of its enactment:

(a) PURPOSE. — The provisions of this subchapter

codify offenses that have traditionally been triable by

military commissions. This chapter does not establish

new crimes that did not exist before its enactment, but

rather codifies those crimes for trial by military

commission.

(b) EFFECT. — Because the provisions of this

subchapter (including provisions that incorporate

definitions in other provisions of law) are declarative

of existing law, they do not preclude trial for crimes

4

that occurred before the date of the enactment of this

chapter.

Id. § 950p (emphases added). The court must “presume that

[the] legislature says in a statute what it means and means in a

statute what it says there.” Conn. Nat’l Bank v. Germain, 503

U.S. 249, 253–54 (1992). The words used by Congress are to be

understood in their ordinary, normal meaning, absent a contrary

indication. See Freeman v. Quicken Loans, Inc., 132 S. Ct.

2034, 2042 (2012).

The reference in Congress’s plain and unequivocal

statement of purpose to “offenses that have traditionally been

triable by military commissions,” 10 U.S.C. § 950p(a) (emphasis

added), clearly indicates its intent to confine military

commissions to their traditional role and jurisdiction, not to

overturn settled principles. “Traditionally” is the adverbial form

of the word “traditional,” which means “long-established” or

“habitually done, used, or found.” THE NEW OXFORD

AMERICAN DICTIONARY 1785 (2d ed. 2005). A “tradition[]” is

readily identified and found in established practices; it is not

based on a “few scattered . . . anomalies.” NLRB v. Noel

Canning, No. 12-1281, slip op. at 21 (U.S. June 26, 2014). To

quote Henry James: “[I]t takes an endless amount of history to

make even a little tradition.” THE AMERICAN SCENE 164 (1907).

Thus sang Tevye in “Fiddler on the Roof” of “Tradition” that

has lasted for generations. Jerry Bock & Sheldon Harnick,

Prologue – Tradition, on FIDDLER ON THE ROOF (RCA Victor

1964).

Congress’s unusual “effect” statement, that the 2006 Act’s

provisions are “declarative of existing law,” 10 U.S.C.

§ 950p(b), amplifies its instruction in the statement of purpose

to look to offenses traditionally triable by military commissions.

Here, Congress expresses sensitivity to the implicit

5

constitutional concerns arising from authorizing military

commissions to try persons for conduct predating the 2006 Act.

Its statement that the 2006 Act permits retroactive application

only for offenses previously triable by military commission

accords with the established “presumption against statutory

retroactivity,” and is the very antithesis of a contrary

“unambiguous directive” or “express command” requiring

retroactivity. Landgraf v. USI Film Products, 511 U.S. 244,

263, 270, 280 (1994); see also Calder v. Bull, 3 Dall. 386, 390

(1798) (opinion of Chase, J.); Martin v. Hadix, 527 U.S. 343,

354 (1999); Lindh v. Murphy, 521 U.S. 320, 325 (1997). This

presumption is “deeply rooted in our jurisprudence, and

embodies a legal doctrine centuries older than our Republic.”

Landgraf, 511 U.S. at 265.

Ambiguity, if any, would arise, therefore, only in

identifying the offenses that “have traditionally been triable by

military commissions,” 10 U.S.C. § 950p(a), and the Supreme

Court has provided clear guidance on the resolution of this

question. Congress’s statement that the offenses it has listed are

“declarative of existing law,” id. § 950p(b), is a legal conclusion

that is subject to a judicial declaration of what the law is. See

Marbury v. Madison, 5 U.S. 137, 177 (1803); see also Noel

Canning, No. 12-1281, slip op. at 7. “[A] mistaken opinion of

the legislature concerning the law[] does not make law.”

Postmaster-General v. Early, 25 U.S. 136, 148 (1827); see also

United States v. Stafoff, 260 U.S. 477, 480 (1923) (Holmes, J).

Determining what offenses were “traditionally” tried by military

commissions according to “existing law” at the time of the

conduct underlying Bahlul’s convictions carries out Congress’s

expressly stated purpose, and is not an attempt to rewrite the

2006 Act’s listing of offenses because Congress was mistaken,

see Op. at 25.

At the time of Bahlul’s charged conduct, the relevant statute

6

was Article 21 of the Uniform Code of Military Justice, 10

U.S.C. § 821 (2000). See Hamdan, 548 U.S. at 592–93; see also

Yamashita, 327 U.S. at 7; Quirin, 317 U.S. at 28. It confers

jurisdiction on military commissions over “offenders or offenses

that by statute or by the law of war may be tried by military

commissions.” 10 U.S.C. § 821 (2000). The only offenses then

listed by statute were spying and aiding the enemy, 10 U.S.C.

§§ 904, 906 (2000). Because Bahlul was not charged with either

of these offenses, the military commission trying him had

jurisdiction only over violations triable by military commission

under “the law of war.” See Hamdan, 548 U.S. at 613;

Yamashita, 327 U.S. at 17; Quirin, 317 U.S. at 29.

For more than seventy years, the Supreme Court has

interpreted the “law of war” to mean the international law of

war. In Quirin, examining the predecessor statute to 10 U.S.C.

§ 821 — Article 15 of the Articles of War, which similarly

referenced “offenders or offenses that by statute or by the law of

war may be triable by such military commissions” — the Court

stated that in Article 15 Congress had “sanction[ed], within

constitutional limitations, the jurisdiction of military

commissions to try persons and offenses which, according to the

rules and precepts of the law of nations, and more particularly

the law of war, are cognizable by such tribunals.” 317 U.S. at

27–28 (emphasis added). The Court reaffirmed its

understanding that the law of war is a “branch of international

law,” id. at 29, four years later in Yamashita. Discussing the

jurisdiction of the military commission, the Court looked to the

violations of the law of war “recognized in international law”

and consulted the Hague Conventions and the Geneva

Conventions. Yamashita, 327 U.S. at 14–16. “[W]hen a new

legal regime develops out of an identifiable predecessor, it is

reasonable to look to the precursor in fathoming the new law.”

Johnson v. United States, 529 U.S. 694, 710 (2000); see also

Hamilton v. Rathbone, 175 U.S. 414, 421 (1899). More

7

recently, in addressing Section 821 in Hamdan, the Court

adhered to Quirin and Yamashita by looking to the body of

international law governing armed conflict. See Hamdan, 548

U.S. at 602–03 (plurality op.); id. at 641 (Kennedy, J.,

concurring in part); see also Memorandum from the Office of

Legal Counsel to the Attorney General 28, 30 (July 16, 2010),

printed in New York Times v. United States, No. 13-422-cv, slip

op. app. A (2d Cir. June 23, 2014) (describing the law of war as

international law).

B.

To demonstrate that the offenses of which Bahlul was

convicted are violations of the international law of war and

within the jurisdiction of his military commission, Supreme

Court precedent indicates that the “Government must make a

substantial showing that the crime for which it seeks to try a

defendant by military commission is acknowledged to be an

offense against the law of war.” Hamdan, 548 U.S. at 603

(plurality op.). For instance, in Quirin, the Court concluded that

a military commission had jurisdiction to try “unlawful

combatants” who surreptitiously entered the United States,

discarding their uniforms on arrival, for the purpose of

committing hostile acts involving destruction of life or property.

317 U.S. at 35–36. This charge, the Court explained, “has been

so recognized in practice both here and abroad, and has so

generally been accepted as valid by authorities on international

law that we think it must be regarded as a rule or principle of the

law of war.” Id. Similarly, in Yamashita, the Supreme Court

held that a military commission had jurisdiction to try an

invading Commanding General of the Imperial Japanese Army

for breach of his duty to control the members of his command,

by permitting them to commit atrocities against civilian

populations and prisoners of war, because the charge “plainly”

alleged a violation of the law of war, the purpose of which is “to

protect civilian populations and prisoners of war from brutality.”

8

327 U.S. at 13–18.

The government has repeatedly conceded that the three

offenses of which Bahlul was convicted are not, and were not at

the time of Bahlul’s conduct, law-of-war offenses under

international law. See Resp’t’s Br. 34 (regarding conspiracy

only); Resp’t’s Pet. for Reh’g En Banc 1–2 (“the charges are not

sustainable under Hamdan II because they have not attained

recognition at this time as offenses under customary international

law”); Resp’t’s pre-Hamdan II Panel Br. 57 (“the offenses of

conspiracy, solicitation, and providing material support to

terrorism have not attained international recognition at this time

as offenses under customary international law”); Oral Argument

Tr. 15 (Sept. 30, 2013) (“we have conceded that [all three

offenses] are not violations of the international law of war”).

This should end the matter given Congress’s stated purpose and

effect in the 2006 Act, 10 U.S.C. § 950p. Instead, departing

from the instruction of more than half a century of Supreme

Court precedent, the government contends that the en banc court

can affirm Bahlul’s convictions on the basis of a U.S. common

(or U.S. domestic) law of war. Because the court is vacating

Bahlul’s convictions for material support for terrorism and

solicitation but not for inchoate conspiracy, see Op. at 3, I need

address only Bahlul’s jurisdictional challenges to his conviction

for inchoate conspiracy. It bears noting, however, that the

court’s analysis of the infirmities of the government’s U.S.

common law theory, based on Civil War military commissions

and field orders, in vacating two of Bahlul’s convictions applies

no less to his conviction for inchoate conspiracy. See Op. at 46,

49, 52.

1. The trial record of the law-of-war military commission

makes clear Bahlul was charged and convicted of inchoate

conspiracy; his stand-alone conspiracy conviction did not depend

upon proof of the completion of any object offense (such as

9

murder) or proof that the overt acts in furtherance of the

conspiratorial agreement of which he was convicted (such as

preparing a propaganda video) were law-of-war offenses.

First, the government elected not to charge Bahlul under the

Pinkerton doctrine under which he could have been found

vicariously liable for reasonably foreseeable substantive crimes

committed by his co-conspirators in furtherance of the

conspiracy. See Resp’t’s Br. 47; Pinkerton v. United States, 328

U.S. 640 (1946). The government also did not pursue the theory

that Bahlul had joined a joint criminal enterprise. At the

beginning of Bahlul’s trial, the prosecutor moved to strike the

charge that Bahlul had “join[ed] al Qaeda, an enterprise of

persons who share the common criminal purpose that involved,

at least in part, the commission or intended commission of one

or more substantive offenses triable by military commission.”

Trial Tr. 110.

Second, the trial evidence allowed for conviction of no more

than inchoate conspiracy. The government’s evidence consisted

of Bahlul’s agreement with Usama bin Laden and other members

of al Qaeda to commit law-of-war offenses and his commission

of non-law-of-war, non-criminal overt acts in furtherance of the

agreement. (The government’s focus at trial was on Bahlul’s

role as an al Qaeda propagandist, in particular, his preparation of

a recruitment video entitled “The Destruction of the American

Destroyer U.S.S. Cole.”) None of the overt acts committed in

furtherance of the charged conspiracy — including traveling to

Afghanistan with the intent to join al Qaeda, undergoing

military-type training at a training camp sponsored by al Qaeda,

pledging fealty (or “bayat”) to Usama bin Laden, or transcribing

the martyr wills of two of the September 11th hijackers — is a

law-of-war offense. Even assuming being armed would have

sufficed, the military commission found Bahlul not guilty of the

overt act that he had “armed himself with an explosive belt, rifle,

10

and grenades to protect and prevent the capture of Usama bin

Laden.”

Third, the presiding military judge instructed the members

of the military commission that to find Bahlul guilty of

conspiracy, they must find beyond a reasonable doubt that he

knowingly entered into an agreement to commit one or more

substantive offenses triable by military commission and that he

knowingly committed at least one overt act in furtherance of that

agreement. Trial Tr. 845–46. The judge further instructed that

proof the object of the conspiratorial agreement, the substantive

law-of-war offense, “actually occurred is not required” and

“[t]he overt act required for this offense does not have to be a

criminal act.” Id. at 848–49. The presiding judge also confirmed

that Bahlul was not being tried on the basis of a joint criminal

enterprise; when he discovered that his written instructions

included the word “enterprise,” the judge instructed the military

commission members to strike the words “or enterprise,”

explaining “that’s not before you,” id. at 881.

2. The international law of war does not recognize inchoate

conspiracy as a law-of-war offense. Although there are two

exceptions — conspiracy to commit genocide and conspiracy to

wage aggressive war (also known as the commission of crimes

against peace), see Hamdan, 548 U.S. at 610 (plurality op.); 22

TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE

INTERNATIONAL MILITARY TRIBUNAL: NUREMBERG, 14

NOVEMBER 1945 – 1 OCTOBER 1946, at 469 (1948) (“TRIAL OF

MAJOR WAR CRIMINALS AT NUREMBERG”); Antonio Cassese,

International Criminal Law 191 (2003); see also Br. of Amici

Curiae Int’l Law Scholars 12–14 — the government does not

argue that either applies to Bahlul.

Treaty law and international courts and tribunals have

refused to recognize inchoate conspiracy as a war crime because

11

of its potential for conflict with the international law-of-war

principle “that criminal guilt is personal, and that mass

punishments should be avoided.” TRIAL OF MAJOR WAR

CRIMINALS AT NUREMBERG at 500. Morever, the Anglo-

American concept of conspiracy is not known to some European

legal systems. See Telford Taylor, THE ANATOMY OF THE

NUREMBERG TRIALS: A PERSONAL MEMOIR 36 (1992)

(“Taylor”). Neither the Hague Conventions nor the Geneva

Conventions, which are the “major treaties on the law of war,”

includes inchoate conspiracy as an international law-of-war

offense. Hamdan, 548 U.S. at 603–04 (plurality op.); see

Convention with Respect to the Laws and Customs of War on

Land, July 29, 1899, 32 Stat. 1803, 1 Bevans 247; Convention

Respecting the Laws and Customs of War on Land, Oct. 18,

1907, 36 Stat. 2277, 1 Bevans 631; Geneva Convention for the

Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75

U.N.T.S. 31; 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 Relative to the Treatment of Prisoners of

War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; 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;

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; 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.

The International Military Tribunal convened at Nuremberg

“pointedly refused to recognize as a violation of the law of war

conspiracy to commit war crimes,” Hamdan, 548 U.S. at 610

(plurality op.), concluding that its charter “does not define as a

12

separate crime any conspiracy except the one to commit acts of

aggressive war.” TRIAL OF MAJOR WAR CRIMINALS AT

NUREMBERG at 469; see also Charter of the International

Military Tribunal, in Agreement for the Prosecution and

Punishment of the Major War Criminals of the European Axis,

Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 280; Taylor at 550–53.

The Charter addressed the personal responsibility of the major

war criminals of the European Axis. See Charter arts. 1, 6–8.

The Tribunal was concerned that “overbroad application of the

conspiracy principle may drag innocent people into the

prosecution’s net.” Taylor at 553. The United States Military

Tribunals convened to try additional defendants also concluded

that they “ha[d] no jurisdiction to try any defendant upon a

charge of conspiracy considered as a separate substantive

offense.” 15 UNITED NATIONS WAR CRIMES COMMISSION, LAW

REPORTS OF TRIALS OF WAR CRIMINALS 90 (1949) (“LAW

REPORTS OF TRIALS OF WAR CRIMINALS”). In addition, the

Charter of the International Military Tribunal for the Far East did

not confer jurisdiction over inchoate conspiracies to commit war

crimes or crimes against humanity, only conspiracy to commit

crimes against peace. See Charter of the International Military

Tribunal for the Far East art. 5, Jan. 19, 1946, T.I.A.S. No. 1589,

4 Bevans 20.

Modern statutes defining international law-of-war offenses

do not refer to conspiracy to commit such offenses (other than

genocide). See Rome Statute of the International Criminal

Court, July 17, 1998, 2187 U.N.T.S. 90; Statute of the

International Tribunal for the Former Yugoslavia, adopted by

S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32

I.L.M. 1159, 1192; Statute of the International Tribunal for

Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955

(1994), reprinted in 33 I.L.M. 1598, 1602; Statute of the Special

Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 138.

Additionally, international tribunals recognizing “joint criminal

13

enterprise” as a theory of liability for completed law-of-war

offenses have rejected a separate inchoate offense based on

“mere membership” or “conspiring to commit crimes,” and

instead recognize liability only for “participation in the

commission of the crime.” 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); see also Br. of Amici Curiae

Int’l Law Scholars 8–10.

3. Given this historical background, the government has a

heavy burden to show that Congress’s purpose in enacting the

2006 Act extended to inchoate conspiracy as an “offense[] that

ha[s] traditionally been triable by military commissions,” 10

U.S.C. § 950p(a). The government begins by suggesting that “a

systemized body of international law establishing individual

criminal responsibility for specific acts during warfare”

commenced with the Hague Conventions of 1899 and 1907 and

“is a relatively modern innovation.” Resp’t’s Br. 28 (citing

Timothy L.H. McCormack, From Sun Tzu to the Sixth

Committee: The Evolution of an International Criminal Law

Regime, in THE LAW OF WAR CRIMES: NATIONAL AND

INTERNATIONAL APPROACHES 31, 43 (Timothy L.H. McCormack

& Gerry J. Simpson eds., 1997)). It continues by citing Colonel

William Winthrop, referred to by the Supreme Court as the

“Blackstone of Military Law,” Hamdan, 548 U.S. at 597

(plurality op.) (quoting Reid, 354 U.S. at 19 n.38 (plurality op.)),

for the proposition that prior to the adoption of these and later

treaties, the “offenses in violation of the laws and usages of war

[consisted of] those principally, in the experience of our wars,

made the subject of charges and trial.” Resp’t’s Br. 29 (quoting

14

William Winthrop, MILITARY LAW AND PRECEDENTS 839 (1920)

(“Winthrop PRECEDENTS”)). It also points to the reference in

Hamdan to “the American common law of war,” 548 U.S. at

613. Resp’t’s Br. 32. Neither Winthrop nor Hamdan advance

the government’s case for sustaining Bahlul’s conspiracy

conviction.

First, in discussing the Civil War military commissions

relied upon by the government, Winthrop “excludes conspiracy

of any kind from his own list of offenses against the law of war.”

Hamdan, 548 U.S. at 608 (plurality op.) (citing Winthrop

PRECEDENTS at 839–40). Instead, Winthrop classifies the

relevant Civil War conspiracy cases either as “[c]rimes and

statutory offenses cognizable by State or U.S. courts, and which

would properly be tried by such courts if open and acting,” or as

a “combin[ation]” of such civilian crimes and “violations of the

laws and usages of war cognizable by military tribunals.”

Winthrop PRECEDENTS at 839 & n.5. Winthrop rejected the idea

that inchoate conspiracy could be triable by law-of-war military

commission, emphasizing that “the jurisdiction of the military

commission should be restricted to cases of offence consisting in

overt acts, i.e. in unlawful commissions or actual attempts to

commit, and not in intentions merely.” Id. at 841. In other

words, “‘overt acts’ constituting war crimes are the only proper

subject at least of those military tribunals not convened to stand

in for local courts,” Hamdan, 548 U.S. at 608 (plurality op.)

(citing Winthrop PRECEDENTS at 841 & nn.22, 23). The cases

cited by the government reveal that this is the manner in which

the Civil War military commissions proceeded. See infra pt.

I.C.1.

Second, the Supreme Court’s reference to “the American

common law of war” in Hamdan, 548 U.S. at 613, is to U.S.

military commission tradition and practice as an additional

constraint on, not an alternative basis for, military commission

15

jurisdiction under Section 821. The Court stated that the

Uniform Code of Military Justice, which includes Section 821,

“conditions the President’s use of military commissions on

compliance not only with the American common law of war, but

also with the rest of the [Uniform Code of Military Justice] itself,

insofar as applicable, and with the ‘rules and precepts of the law

of nations.’” Id. (quoting Quirin, 317 U.S. at 28). To come

within the “law of war” under Section 821, an offense must

constitute both a violation of the international law of war and a

violation of the law of war as traditionally recognized in U.S.

military commissions. This is necessary because, as the Court

explained in Quirin, there may be

acts regarded in other countries, or by some writers on

international law, as offenses against the law of war

which would not be triable by military tribunal here,

either because they are not recognized by our courts as

violations of the law of war or because they are of that

class of offenses constitutionally triable only by a jury.

317 U.S. at 29. Consequently, in Quirin, Yamashita, and

Hamdan the Supreme Court sought to establish that the relevant

offense was a violation of the law of war under international law

and was recognized in U.S. military commissions. See Quirin,

317 U.S. at 35; Yamashita, 327 U.S. at 15–16; Hamdan, 548 U.S.

at 603 (plurality op.). Under these precedents, the practice of

U.S. domestic military commissions is irrelevant as long as

inchoate conspiracy is not an international law-of-war offense,

and the government conceded that it is not. Of course, to the

extent the government relies on the Military Commissions Act

of 2009, which refers to offenses that have “traditionally been

triable under the law of war or otherwise triable by military

commission” to support its argument that the statute embraces “a

class of offenses — lawfully triable in U.S. military commission

practice — that is broader than the group of offenses that are

16

currently prohibited by the international law of war,” Resp’t’s

Br. 28 (quoting 10 U.S.C. § 950p(d) (2009) (emphasis added)),

this cannot advance its position since Bahlul was tried under the

2006 Act.

The legislative history of the 2006 Act also does not

advance the government’s position. The Report of the House

Armed Services Committee on H.R. 6054 states “[f]or the

reasons stated in Justice Thomas’s opinion [in Hamdan], the

Committee views conspiracy [to commit a war crime] as a

separate offense punishable by military commissions.” H.R.

REP. NO. 109-664, pt. 1, at 25 (2006). But Justice Thomas

expressly acknowledged that “conspiracy” was understood as a

law-of-war offense only when it went “beyond ‘intentions

merely,’” and involved “unlawful” overt acts, 548 U.S. at 703

(Thomas, J., dissenting). There was no occasion in Hamdan for

Justice Thomas to address the validity of a conspiracy charge

where, as in Bahlul’s case, “the overt act required . . . does not

have to be a criminal act,” Trial Tr. 849; Justice Thomas

observed that Hamdan was “charged with the overt acts of

providing protection, transportation, weapons, and other services

to the enemy, acts which in and of themselves are violations of

the laws of war,” 548 U.S. at 704 (citation omitted).

C.

Even assuming, contrary to Supreme Court precedent, that

a U.S. common law of war tradition could serve as an

independent basis for sustaining convictions by law-of-war

military commissions for offenses that are not recognized under

the international law of war or by then-existing statute, the

government fails to establish a domestic tradition to sustain

Bahlul’s inchoate conspiracy conviction. It not only fails to

point to evidence comparable to the abundance of evidence “both

here and abroad” relied upon by the Supreme Court in Quirin,

317 U.S. at 31–35 & nn.10, 12, the government has not identified

17

a single case where military commission jurisdiction has been

sustained on the basis of a charge of inchoate conspiracy, much

less a charge of conspiracy with instructions defining the limits

of the government’s burden of proof that are comparable to those

in Bahlul’s case.

1. The Civil War cases to which the government points are,

in fact, consistent with Winthrop’s position. Further, as the

Supreme Court cautioned, “[t]he Civil War precedents must . . .

be considered with caution” because military commissions

“operated as both martial law or military government tribunals

and law-of-war commissions” and thus “often charged hybrid

crimes mixing elements of crimes ordinarily triable in civilian

courts (like treason) and violations of the law of war.” Hamdan,

548 U.S. at 596 n.27, 609 n.37 (plurality op.); see also Winthrop

PRECEDENTS at 839 & n.5. For example, William Murphy, who

was tried by military commission in 1865, was charged with

“[c]onspiracy to burn and destroy steamboats and other property”

and also with “[v]iolati[ng] the laws and customs of war,” by in

fact burning and destroying a steamboat and by secretly crossing

enemy lines and attempting to destroy a second boat. G.C.M.O.

No. 107 (1866). These separate charges suggest that Murphy

was tried by a tribunal serving as both a martial law court and a

law-of-war military commission, and that the military

commission classified the conspiracy charge as a civil crime, not

as a “violation of the laws and customs of war.” Id. Only this

understanding is consistent with the fact that Murphy’s

conspiracy conviction was vacated because the civil courts were

open and therefore the military commission “had no jurisdiction

of his person or of his offence.” In re Murphy, 17 F. Cas. 1030,

1031, 1032 (1867). And because Murphy did in fact destroy a

steamboat during wartime, his case provides no support for the

government’s theory that a Civil War military tribunal had

jurisdiction over conspiracy absent proof, much less absent any

allegation, of a completed substantive law-of-war offense.

18

Similarly, the case of Henry Wirz, also cited by the

government, does not provide evidence of a tradition on which

to base affirmance of Bahlul’s inchoate conspiracy conviction.

Confederate Army Captain Wirz was charged with conspiring to

injure the health and destroy the lives of soldiers in the military

service of the United States and “alleged to have personally

committed a number of atrocities against his victims, including

torture, injection of prisoners with poison, and use of ‘ferocious

and bloodthirsty dogs’ to ‘seize, tear, mangle, and maim the

bodies and limbs’ of prisoners, many of whom died as a result.”

Hamdan, 548 U.S. at 609 (plurality op.) (citing H.R. Doc. No.

314, 55th Cong., 3d Sess., 785, 789–90 (1899)). Notably, as the

Hamdan plurality explained, the Judge Advocate General

determined that one of Wirz’s alleged co-conspirators, R.B.

Winder, should not be tried by military commission because

“while the evidence at the trial of Wirz was deemed by the court

to implicate him in the conspiracy against the lives of all Federal

prisoners in rebel hands, no such specific overt acts of violation

of the laws of war are as yet fixed upon [Winder].” Id. (quoting

H.R. Doc. No. 314, 55th Cong., 3d Sess., 783 (1899)) (emphasis

in original opinion). In other words, had Wirz not committed

overt acts that were violations of the law of war, he could not

have been tried by military commission for conspiracy.

The 1865 trial of the Lincoln assassins, “even if properly

classified as a trial by law-of-war commission,” Hamdan, 548

U.S. at 604 n.35 (plurality op.), likewise does not support the

government’s theory of a U.S. common law-of-war tradition.

The defendants were charged with both “conspiring” to murder

President Lincoln and the completed offense of “maliciously,

unlawfully, and traitorously murdering the said Abraham

Lincoln,” G.C.M.O. No. 356 (1865); see Hamdan, 548 U.S. at

604 n.35 (plurality op.) (quoting H.R. Doc. 314, 55th Cong., 3d

Sess., 696 (1899)); see also THE TRIAL: THE ASSASSINATION OF

PRESIDENT LINCOLN AND THE TRIAL OF THE CONSPIRATORS

19

246–47 (Edward Steers, Jr. ed., 2003). Of utmost significance,

surely, the then-Attorney General, in defending the use of a

military tribunal, treated the charge as alleging the substantive,

completed “offence of having assassinated the President.” 11

Op. Atty. Gen. 297, 297 (1865). Furthermore, the district court,

in rejecting petitions for a writ of habeas corpus filed by three of

the assassins, described the charge of conviction as “a conspiracy

to commit the military crime [of the assassination of the

Commander in Chief] which one of their number did commit.”

Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) (emphasis

added). Recall that in Bahlul’s case the prosecution dismissed

charges and theories of vicarious liability.

In sum, the Civil War conspiracy cases, including the trial

of the Lincoln assassins, each, in fact, involved a completed law-

of-war offense, not an inchoate conspiracy. These cases are

consistent with Winthrop’s description of such conspiracies as

among the “[c]rimes and statutory offenses . . . which would

properly be tried by [State or U.S.] courts if open and acting,” or

alternatively, as hybrid crimes combining elements of crimes

ordinarily triable in civilian courts and law-of-war offenses.

Winthrop PRECEDENTS at 839 & n.5. They offer no reason to

depart from Winthrop’s contemporary rejection of inchoate

conspiracy as a law-of-war offense.

2. The World War II cases cited by the government also do

not establish historical support for the jurisdiction of law-of-war

military commissions over inchoate conspiracy. Although the

Nazi saboteurs in Quirin were charged with conspiracy, the

Supreme Court affirmed their convictions based on the

independent charge that they had violated the law of war by

crossing behind enemy lines having removed their uniforms,

with the purpose of committing sabotage. See Quirin, 317 U.S.

at 48. “The offense was complete when with [hostile] purpose

they entered — or, having so entered, they remained upon — our

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territory in time of war without uniform or other appropriate

means of identification.” Id. at 38. Like the case of the Lincoln

conspirators, Quirin involved a completed law-of-war offense,

not an inchoate conspiracy conviction like Bahlul’s. “If

anything, Quirin supports [the] argument that conspiracy is not

a violation of the law of war,” because “[t]he Court was careful

in its decision to identify an overt, ‘complete’ act” and “took

seriously the saboteurs’ argument that there can be no violation

of law of war — at least not one triable by military commission

— without the actual commission or attempt to commit a ‘hostile

and warlike act.’” Hamdan, 548 U.S. at 606–07 (plurality op.)

(quoting Quirin, 317 U.S. at 37–38). Brigadier General Mark

Martins, the Chief Prosecutor of Military Commissions in the

Department of Defense since June 2011, likewise characterized

Quirin as an authority “supporting [the] rationale” that

conspiracy may be tried under the law of war in conjunction with

a completed offense that appears on the charge sheet, but not as

an inchoate offense. Memorandum from Mark S. Martins, Chief

Prosecutor of Military Commissions, Dep’t of Defense, to the

Convening Authority 4 (Jan. 6, 2013).

The government’s reliance on Colepaugh v. Looney, 235

F.2d 429 (10th Cir. 1956), is misplaced. The Tenth Circuit

followed Quirin in affirming the denial of a habeas petition filed

by another World War II saboteur. Colepaugh had been

convicted on three charges: (1) he “secretly passed through, in

civilian dress, contrary to the law of war, the military and naval

lines of the United States for the purpose of committing

espionage, sabotage and other hostile acts;” (2) he “appeared and

remained in civil dress, contrary to the law of war behind the

military lines of the United States for the purpose of committing

espionage, sabotage and other hostile acts;” and (3) “conspiracy

to commit the above substantive offenses.” Id. at 431. Like the

Supreme Court in Quirin, the Tenth Circuit looked to the “body

of international common law known as the law of war,” id. at

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431–32, and concluded that Colepaugh was not entitled to relief

because he had committed the same substantive law-of-war

offense as the saboteurs in Quirin when he entered this country

and discarded his uniform for the purpose of committing hostile

acts involving the destruction of life or property, id. at 432

(quoting Quirin, 317 U.S. at 35). The court also followed the

Supreme Court in not confirming the validity of the separate

conspiracy charge. Consequently, this case, like Quirin,

provides no support for the government’s theory that Bahlul

could be tried by military commission for inchoate conspiracy

absent any charge that he committed a substantive law-of-war

offense.

3. In sum, “[f]ar from making the requisite substantial

showing, the Government has failed even to offer a ‘merely

colorable’ case for inclusion of conspiracy among those offenses

cognizable by law-of-war military commission,” Hamdan, 548

U.S. at 611 (plurality op.) (citation omitted). As the plurality in

Hamdan explained:

The crime of ‘conspiracy’ has rarely if ever been tried

as such in this country by any law-of-war military

commission not exercising some other form of

jurisdiction, and does not appear in either the Geneva

Conventions or the Hague Conventions — the major

treaties on the law of war. Winthrop explains that

under the common law governing military

commissions, it is not enough to intend to violate the

law of war and commit overt acts in furtherance of that

intention unless the overt acts either are themselves

offenses against the law of war or constitute steps

sufficiently substantial to qualify as an attempt.

Id. at 603–04 (citing Winthrop PRECEDENTS at 841).

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Insofar as the government proposes, contrary to Supreme

Court precedent, a U.S. common law of war basis for sustaining

Bahlul’s conspiracy conviction, the government’s proposal is

also “unmoored from any enumerated power and has no rational

stopping place.” Pet’r’s Br. 32. Such a theory suggests that

modern military commissions could try defendants for any

offense that approximates a charge previously brought before

any type of military tribunal, including Civil War era military

commissions convened to try ordinary civilian crimes. See id.

The government’s interpretation of Congress’s intent in

enacting the 2006 Act, additionally, leaves no room for

consideration of the reasons the international community has

rejected inchoate crimes as law-of-war offenses: for example,

their dragnet effect could sweep in and condemn as war

criminals the line soldier who merely pledged allegiance to the

enemy as well as the errant but innocent delivery boy or

shepherd who was on the wrong street at the wrong time. See

Taylor at 553; Br. of Amicus Curiae Int’l Law Scholars 7, 15–18.

The Supreme Court has long understood the role of military

commissions to arise from the military necessity in the midst of

war “to seize and subject to disciplinary measures those enemies

who in their attempt to thwart or impede our military effort have

violated the law of war,” Quirin, 317 U.S. at 28–29; Hamdan,

548 U.S. at 596 (plurality op.), not to try and convict (as distinct

from holding as prisoners of war) anyone who is a member of the

opposing forces. The law of war governing the use of military

commissions is a product of the costly lessons learned in the last

century from two World Wars, including the principle that, as a

matter of international law, law-of-war offenses are about

personal responsibility for war crimes, not collective guilt. See

TRIAL OF MAJOR WAR CRIMINALS AT NUREMBERG at 500. It

seems unlikely the Congress that enacted the 2006 Act intended

to cast aside such costly learning without expressly indicating

that it intended to do so; by using the phrase “offenses that have

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traditionally been triable,” 10 U.S.C. § 950p(a) (emphasis

added), in stating its purpose, Congress signaled it was adhering

to the established understanding of the role of military

commissions, not breaking new ground.

And, even assuming arguendo that practices of U.S. military

commissions could provide an independent basis upon which to

support the jurisdiction of a law-of-war commission to try an

offense not recognized in international law, nor codified in

statute at the time, the government’s failure to demonstrate that

such a “tradition[]” existed at the time of the charged conduct

requires vacatur of Bahlul’s inchoate conspiracy conviction.

Were the implications for the separation of powers raised by

trial by military commission not “of the highest order,” Hamdan,

548 U.S. at 638 (Kennedy, J., concurring in part), the

government’s effort to establish its inchoate conspiracy theory on

the basis of so meager and deficient an historical showing that it

was among the “offenses that have traditionally been triable by

military commissions,” 10 U.S.C. 950p(a) (2006) (emphasis

added), might be less problematic. After all, the war on terror is

unlike recent wars waged among sovereign nations whose troops

wore identifiable uniforms, and two Presidents have employed

a modern “enemy combatant” military justice regime. See, e.g.,

Boumediene v. Bush, 553 U.S. 723, 733 (2008); Hamdan, 548

U.S. at 570 & n.1. But in codifying “offenses that have

traditionally been triable by military commissions” in the 2006

Act, Congress did not encourage or permit any blurring of the

jurisdictional lines between military commissions and Article III

courts. The Article III courts were open for prosecuting

September 11 perpetrators and other members of al Qaeda for

inchoate conspiracy or other federal crimes. Only years later did

Congress bar the President from using appropriated funds to

bring Guantanamo detainees into the United States for any

purpose. The President has opposed such restrictions on the

24

ground that they strip the Executive Branch of “the authority to

determine when and where to prosecute Guantanamo detainees,

based on the facts and circumstances of each case and our

national security interests” — when the Administration wishes

to employ federal prosecutions [in Article III courts] as “a

legitimate, effective, and powerful tool in our efforts to protect

the Nation.” See Statement by the President on H.R. 3304 (Dec.

26, 2013). So far, Congress has not been persuaded to remove

the restrictions. In the meantime, the court has a duty “in time

of war as well as in time of peace, to preserve unimpaired the

constitutional safeguards of civil liberty.” Quirin, 317 U.S. at

19. Hewing to the jurisdictional limits for law-of-war military

commissions, as Supreme Court precedent instructs, preserves

the separation of powers under which law-of-war military

commissions are confined to their historical role as necessities,

not conveniences, of war. Congress’s unequivocal statement of

its purpose and effect in section 950p of the 2006 Act is

consistent only with the understanding that it intended to

maintain the traditional jurisdictional lines.

II.

There is still another reason why Bahlul’s conviction for

inchoate conspiracy (and the other two convictions) must be

reversed if the 2006 Act is applied retroactively. See Op. at 15.

Even assuming, contrary to its express statement of the intended

“effect” of the 2006 Act, 10 U.S.C. § 950p(b), that Congress

intended the 2006 Act to apply retroactively to create new

offenses triable by military commissions, Bahlul’s convictions

must be vacated under the Ex Post Facto Clause of the

Constitution. U.S. CONST. art. I, § 9, cl. 3.

A.

Bahlul’s Ex Post Facto Clause challenge to his convictions

is properly reviewed de novo for any one of three reasons. In

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applying a plain error standard of review, the majority imposes

a magic-words requirement nowhere to be found in the precedent

of the Supreme Court or in the Uniform Code of Military Justice

as interpreted by the Court of Appeals

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