Ali Hamza Ahmad al Bahlul v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2014 Decided June 12, 2015

No. 11-1324

ALI HAMZA AHMAD SULIMAN AL BAHLUL,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

On Petition for Review from the

United States Court of Military Commission Review

Michel Paradis, Counsel, Office of the Chief Defense

Counsel, argued the cause for petitioner. With him on the briefs

were Mary R. McCormick, Counsel, and Major Todd E. Pierce,

JA, U.S. Army (Ret.).

Jeffrey T. Renz was on the brief for amici curiae First

Amendment Scholars and Historians and The Montana Pardon

Project in support of petitioner.

Agnieszka M. Fryszman was on the brief for National

Institute of Military Justice as amicus curiae in support of

petitioner.

McKenzie A. Livingston was on the brief for amici curiae

Robert D. Steele and other former members of the Intelligence

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Community in support of petitioner.

Robert Barton and Thomas J. McIntosh were on the brief

for amicus curiae Professor David W. Glazier in support of

petitioner.

Jonathan Hafetz was on the brief for amici curiae Asian

American Legal Defense and Education Fund, et al., in support

of petitioner.

John F. De Pue, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Steven M. Dunne, Chief, Appellate Unit, and Joseph Palmer,

Attorney. Francis A. Gilligan, Office of Military Commission,

Lisa O. Moreno and Jeffrey M. Smith, Attorney, U.S.

Department of Justice, entered appearances.

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

Former Government Officials, et al., in support of respondent.

Before: HENDERSON, ROGERS, and TATEL, Circuit Judges

Opinion for the Court by Circuit Judge ROGERS

Concurring opinion by Circuit Judge TATEL

Dissenting opinion by Circuit Judge HENDERSON

ROGERS, Circuit Judge: Pursuant to the Military

Commissions Act of 2006, 10 U.S.C. §§ 948a et seq. (“2006

MCA”), a law of war military commission convened at

Guantanamo Bay, Cuba, found Ali Hamza Ahmad Suliman al

Bahlul guilty of material support for terrorism, solicitation of

others to commit war crimes, and inchoate conspiracy to commit

war crimes. The court, sitting en banc, vacated Bahlul’s

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convictions for material support and solicitation as violative of

the Ex Post Facto Clause of the U.S. Constitution, see Bahlul v.

United States, 767 F.3d 1 (D.C. Cir. 2014), and remanded

Bahlul’s remaining challenges to his conspiracy conviction to

the original panel, see id. at 31. Bahlul contends that his

inchoate conspiracy conviction must be vacated because: (1)

Congress exceeded its authority under Article I, § 8 of the

Constitution by defining crimes triable by military commission

that are not offenses under the international law of war; (2)

Congress violated Article III of the Constitution by vesting

military commissions with jurisdiction to try crimes that are not

offenses under the international law of war; (3) the government

put his thoughts, beliefs, and ideas on trial in violaton of the

First Amendment of the Constitution; and (4) the 2006 MCA

discriminates against aliens in violation of the Equal Protection

component of the Due Process Clause of the Fifth Amendment.

Because Bahlul’s challenges include a structural objection

under Article III that cannot be forfeited, see Commodity

Futures Trading Comm’n v. Schor, 478 U.S. 833, 850–51

(1986), we review that challenge de novo, and we conclude, for

the following reasons, that his conviction for inchoate

conspiracy must be vacated.

I.

Bahlul contends that the jurisdiction of law of war military

commissions is, under the Constitution, limited to offenses

under the international law of war, and thus that Congress has

encroached upon the Article III judicial power by authorizing

Executive Branch tribunals to try the purely domestic crime of

inchoate conspiracy. As a threshold matter, the government

maintains that Bahlul has forfeited the Article III challenge,

having failed to raise the argument at his trial before the military

commission. Bahlul’s challenge, however, presents a structural

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violation of Article III and is not waivable or forfeitable.

The Supreme Court held in Schor that an Article III

structural claim of encroachment on the judicial power was not

subject to waiver. Id. at 850–51. The Court explained that

“Article III, § 1, not only preserves to litigants their interest in

an impartial and independent federal adjudication of claims

within the judicial power of the United States, but also serves as

an inseparable element of the constitutional system of checks

and balances.” Id. at 850 (internal quotation marks omitted).

Further, the Court explained, it “safeguards the role of the

Judicial Branch in our tripartite system by barring congressional

attempts to transfer jurisdiction to non-Article III tribunals for

the purpose of emasculating constitutional courts, and thereby

prevent[s] ‘the encroachment or aggrandizement of one branch

at the expense of the other.’” Id. (quoting Buckley v. Valeo, 424

U.S. 1, 122 (1976)) (alterations and some internal quotation

marks omitted). The Court held:

To the extent that this structural principle is

implicated in a given case, the parties cannot by

consent cure the constitutional difficulty for the same

reason that the parties by consent cannot confer on

federal courts subject-matter jurisdiction beyond the

limitations imposed by Article III, § 2. When these

Article III limitations are at issue, notions of consent

and waiver cannot be dispositive because the

limitations serve institutional interests that the parties

cannot be expected to protect.

Id. at 850–51 (internal citation omitted). As a result, even

though Schor had consented to adjudication of his state-law

claim by an Article I tribunal, see id. at 849–50, the Supreme

Court analyzed his structural challenge de novo, see id. at

851–57.

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The Court reaffirmed Schor’s analysis in Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211 (1995), explaining that it

was consistent with a rule that although res judicata claims were

waivable, courts had discretion to excuse the waiver. See id. at

231–32. Accordingly, this court, as well as every other circuit

court to address the issue, has held that under Schor a party

“could not . . . waive his ‘structural’ claim” under Article III.

Kuretski v. Comm’r of Internal Revenue Serv., 755 F.3d 929,

937 (D.C. Cir. 2014) (emphasis added); see In re BP RE, L.P.,

735 F.3d 279, 287–90 (5th Cir. 2013); Wellness Int’l Network,

Ltd. v. Sharif, 727 F.3d 751, 769 (7th Cir. 2013) (rev’d on other

grounds); Waldman v. Stone, 698 F.3d 910, 917–18 (6th Cir.

2012). Most recently, in Wellness International Network, Ltd.

v. Sharif, No. 13-935 (U.S. May 26, 2015), the Supreme Court

again confirmed that “Schor forbids [] using consent to excuse

an actual violation of Article III.” Id., slip op. at 14 n.10; see id.

at 9, 11–12; accord id. at 12 (Roberts, C.J., dissenting).

Of course, the issue before us is not waiver but forfeiture.

See generally United States v. Olano, 507 U.S. 725, 733–34

(1993). The Supreme Court’s analysis of waiver in Schor

applies to forfeiture as well. There, the Court rejected waiver of

Article III § 1 claims “for the same reason” that parties cannot

waive Article III § 2 jurisdictional limitations, 478 U.S. at 851,

which are not subject to forfeiture, see United States v. Cotton,

535 U.S. 625, 630 (2002). The Court cited United States v.

Griffin, 303 U.S. 226, 229 (1938), where it had addressed de

novo a subject-matter jurisdiction challenge that the defendants

had failed to raise in the district court. In Schor, the Court

explained that the analogy stems from the fact that both “Article

III limitations . . . serve institutional interests that the parties

cannot be expected to protect.” 478 U.S. at 851. As four

Justices observed in Freytag v. Comm’r of Internal Revenue,

501 U.S. 868 (1991), “[i]t is clear from our opinion in Schor that

we had the analogy to Article III subject-matter jurisdiction in

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mind.” Id. at 897 (Scalia, J., joined by O’Connor, Kennedy, and

Souter, JJ., concurring in part and concurring in the judgment).

Likewise in Stern v. Marshall, 131 S. Ct. 2594 (2011), the Court

analyzed de novo a structural Article III challenge to a

bankruptcy court’s jurisdiction even though that challenge had

not been raised in the bankruptcy court. Id. at 2601–02,

2608–20. Again in Sharif, the Court reviewed the structural

Article III issue de novo, even though the claim had not been

raised in the bankruptcy court or the district court. See Sharif,

No. 13-935, slip op. at 6, 12–15. We therefore hold that under

Schor’s analysis, Bahlul’s structural challenge under Article III

is not subject to forfeiture.

Such searching, de novo review is appropriate because

Bahlul’s Article III challenge implicates the power of the

political branches to sideline the federal courts. “Trial by

military commission raises separation-of-powers concerns of the

highest order.” Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006)

(Kennedy, J., concurring in part). “Every extension of military

jurisdiction is an encroachment on the jurisdiction of the civil

courts . . . .” Reid v. Covert, 354 U.S. 1, 21 (1957) (plurality

op.). The government has conceded, in light of Schor, that to the

extent Bahlul raises a structural challenge, it is subject to de novo

review. See Appellee’s Br. 50; Oral Arg. Tr. 29, 30. It

mistakenly suggests, however, that Bahlul’s Article III challenge

asserts only his personal right to a jury trial, which is subject to

forfeiture and thus plain error review. See Appellee’s Br. 49–50.

This ignores Part II of Bahlul’s brief where he discusses the

“judicial power” and relies on Article III structural precedent of

the Supreme Court in maintaining that “[t]his [c]ourt must be

sure that the political branches are not seeking to ‘chip away at

the authority of the Judicial Branch . . . . ‘Slight encroachments

create new boundaries from which legions of power can seek

new territory to capture.’’” Appellant’s Br. 27 (quoting Stern,

131 S. Ct. at 2620 (quoting Reid, 354 U.S. at 39 (plurality op.)));

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see id. at 27–37; Reply Br. 20.

Our dissenting colleague misreads Schor in maintaining that

its holding, quoted above, does not speak to waivability or

forfeitability at all. Dis. Op. 11–18. To the contrary, the

Supreme Court, at that point in its opinion, was addressing the

distinction between the waivability of the right component and

the structural component of Article III § 1, and concluded that

only the former was waivable. See Schor, 478 U.S. at 848–51.

The Court reiterated that distinction in Sharif, No. 13-935, slip

op. at 9, 11–12, and emphasized that Schor “forbids” waiver of

the latter, id. at 14 n.10. The dissent suggests that Schor’s non-

waiver holding applies only to substantive rights, not arguments.

See Dis. Op. 17–19. But the analysis in Schor applied to both

“consent and waiver,” 478 U.S. at 851 (emphasis added), and

later Supreme Court precedent confirms that Schor’s non-waiver

holding applies to “defense[s],” “doctrine[s],” “challenge[s],”

and “claim[s],” not just rights, Plaut, 514 U.S. at 231–32.

Indeed, the discussion in Plaut about excusing waiver in the res

judicata context would make little sense if waiver meant there

was no violation in the first place. See id. at 231. Under Schor

and Sharif, parties can waive neither a separation-of-powers

violation nor a separation-of-powers challenge. Our colleague

also confuses Sharif’s analysis by conflating the individual right

and the structural interest protected by Article III § 1. See Dis.

Op. 14–17. Each acknowledgment of waivability in the Court’s

opinion refers to the individual right. See Sharif, No. 13-935,

slip op. at 2, 9, 11, 12–13, 17, 19 & n.13. By contrast, each time

the Court discussed the distinction, it made clear that the

structural interest, unlike the individual right, is not subject to

waiver. Id. at 9, 11–12, 14 n.10. The Court explained that it

could “not rely on Sharif’s consent to ‘cure’” an “actual”

separation-of-powers violation, but simply treated his consent as

relevant to the merits question of whether “such violation has

occurred” in the first place. Id. at 14 n.10 (alteration omitted).

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Our dissenting colleague also misinterprets Sharif to

suggest that structural Article III claims can be forfeited. See

Dis. Op. 15–16. Having decided the structural question de novo,

the Court remanded two questions: Whether Sharif had in fact

consented to adjudication by the bankruptcy court, and if so,

whether he had forfeited his right to adjudication by an Article

III judge by failing to raise an Article III objection in the district

court. Sharif, No. 13-935, slip op. at 6, 20. The reference to

forfeiture is unremarkable. If the Seventh Circuit on remand

finds that Sharif consented, then all that is left for the Seventh

Circuit to decide is Sharif’s personal right claim, and it has

always been clear that individual rights — even individual

Article III rights — are subject to forfeiture. The Court resolved

the structural issue de novo without regard to any possible

forfeiture. Even the Justice who was certain that Sharif had

forfeited his constitutional claim thought it proper to resolve the

structural Article III issue de novo. See id. at 1–2 (Alito, J.,

concurring in part and concurring in the judgment). Indeed, the

Court tied its remand instruction to the contentions in the

petitioners’ brief, see id. at 20, which acknowledged there are

some Article III claims that “raise ‘structural’ concerns that

litigants may not waive or forfeit.” Br. for Pet’rs Wellness Int’l,

et al. 52.

Our analysis would not change even if, as the dissent

maintains, the Court in Schor had instructed that courts should

excuse waivers of Article III structural claims, instead of holding

that such claims were unwaivable. See Dis. Op. 12–13, 19. The

Article III challenge in Bahlul’s case goes to the heart of the

judiciary’s status as a coordinate branch of government. Our

colleague’s focus on the fact that Bahlul is “concededly — and

unapologetically — guilty of the charged offenses,” id. at 25, is

a red herring. To excuse forfeiture would not be for the purpose

of protecting an individual defendant, but to “safeguard[] the role

of the Judicial Branch in our tripartite system.” Schor, 478 U.S.

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at 850. The court would vindicate “the federal judiciary’s strong

interest[s],” Kuretski, 755 F.3d at 937 (emphasis added), not

merely Bahlul’s. Any disruption to normal appellate process, see

Dis. Op. 20–22, 22 n.8, is “plainly insufficient to overcome the

strong interest of the federal judiciary in maintaining the

constitutional plan of separation of powers” under Article III.

Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962). To the extent

the dissent insists that this court lacks the power to excuse

forfeiture, see Dis. Op. 19–20; contra Nguyen v. United States,

539 U.S. 69, 80 (2003), it relies on precedent applying Federal

Rule of Criminal Procedure 52(b), which “governs on appeal

from criminal proceedings . . . in district court,” Olano, 507 U.S.

at 731; see Fed. R. Crim. P. 1 Advisory Comm. Note (“[T]hese

rules are intended to govern proceedings in criminal cases triable

in the United States District Court.”), whereas Bahlul is

appealing the decision of the Court of Military Commission

Review, and the statute governing such appeals, see 10 U.S.C. §

950g, contains none of the limitations the dissent labors to

establish. The United States Court of Appeals for the Armed

Forces has rejected the same argument in the court-martial

context, affirming the decision of a lower tribunal to excuse

forfeiture and conducting its own review de novo. See United

States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001); 10 U.S.C. §

950f(d).

We turn to the merits of Bahlul’s structural Article III

challenge to his conspiracy conviction.

II.

“Article III, § 1, of the Constitution mandates that ‘[t]he

judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may

from time to time ordain and establish.’” Stern, 131 S. Ct. at

2608. Section 2, clause 1, provides that “[t]he judicial Power

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shall extend” to, among others, “all Cases, in Law and Equity,

arising under this Constitution, the Laws of the United States,

and Treaties made, or which shall be made, under their

Authority” and “to Controversies to which the United States

shall be a Party.” These cases and controversies include criminal

prosecutions. See United States ex rel. Toth v. Quarles, 350 U.S.

11, 15 (1955); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121

(1866). Article III § 2 requires that “[t]he Trial of all Crimes,

except in Cases of Impeachment, shall be by Jury.” U.S. CONST.

art. III, § 2, cl. 3. The Supreme Court, based on the text of

Article III and its own precedent, has continued to reaffirm that

Article III is an inseparable element of the

constitutional system of checks and balances that both

defines the power and protects the independence of

the Judicial Branch. Under the basic concept of

separation of powers that flows from the scheme of a

tripartite government adopted in the Constitution, the

“judicial Power of the United States” can no more be

shared with another branch than the Chief Executive,

for example, can share with the Judiciary the veto

power, or the Congress share with the Judiciary the

power to override a Presidential veto.

Stern, 131 S. Ct. at 2608 (alterations and some internal quotation

marks omitted) (quoting U.S. CONST. art. III, § 1).

If a suit falls within the judicial power, then “the

responsibility for deciding that suit rests with Article III judges

in Article III courts.” Id. at 2609. There are limited exceptions:

Congress may create non-Article III courts to try cases in the

District of Columbia and U.S. territories not within a state. See

Palmore v. United States, 411 U.S. 389, 390–91 (1973);

American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511,

546 (1828). It may assign certain criminal prosecutions to courts

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martial, see Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857),

and military commissions, see Ex parte Quirin, 317 U.S. 1, 46

(1942). And it may assign to administrative agencies the

adjudication of disputes involving “public rights” stemming from

federal regulatory programs. See Stern, 131 S. Ct. at 2610;

Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S.

(18 How.) 272, 284 (1855). There are three types of military

commissions. See, e.g., Hamdan, 548 U.S. at 595–98 (plurality

op.), 683 (Thomas, J., dissenting). Bahlul was tried by a law of

war military commission, Bahlul, 767 F.3d at 7, so the question

is whether conspiracy falls within the Article III exception for

that type of commission.

A.

The Supreme Court addressed the contours of the exception

to Article III for law of war military commissions in the seminal

case of Ex parte Quirin, 317 U.S. 1 (1942). There, Nazi soldiers

found out of uniform in the United States during World War II

were convicted of sabotage and other offenses by a law of war

military commission. They challenged their convictions on the

ground that Article III guaranteed them a right to trial by jury in

civil court. The Supreme Court held that the law of war military

commission had jurisdiction to try “offense[s] against the law of

war,” of which sabotage was one. Id. at 46. The Court explained

that Article III § 2 was intended

to preserve unimpaired trial by jury in all those cases

in which it had been recognized by the common law

and in all cases of a like nature as they might arise in

the future, but not to bring within the sweep of the

guaranty those cases in which it was then well

understood that a jury trial could not be demanded as

of right.

Id. at 39 (citation omitted). Given this “long-continued and

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consistent interpretation,” the Court stated “that § 2 of Article III

and the Fifth and Sixth Amendments cannot be taken to have

extended the right to demand a jury to trials by military

commission, or to have required that offenses against the law of

war not triable by jury at common law be tried only in the civil

courts.” Id. at 40. “[S]ince the founding of our government” and

continued in the Articles of War, Article III has been construed

“as not foreclosing trial by military tribunals, without a jury, of

offenses against the law of war committed by enemies not in or

associated with our Armed Forces.” Id. at 41.

In Quirin, the Supreme Court described the law of war as a

“branch of international law,” 317 U.S. at 29, and defined “the

law of war as including that part of the law of nations which

prescribes, for the conduct of war, the status, rights and duties of

enemy nations as well as of enemy individuals.” Id. at 27–28.

The Court stated that Congress had

exercised its authority to define and punish offenses

against the law of nations by sanctioning . . . the

jurisdiction of military commissions to try persons

for offenses which, according to the rules and

precepts of the law of nations, and more particularly

the law of war, are cognizable by such tribunals.

Id. at 28. In addition to international precedents, see id. at 30

n.7, 31 n.8, 35 n.12, the Court also considered domestic

precedents (during the American Revolution, the War of 1812,

and the Mexican and Civil Wars, see id. at 31 nn.9 & 10, 42

n.14), but only as potential limits on the law of war. The Court

explained:

We may assume that there are acts regarded in other

countries, or by some writers on international law, as

offenses against the law of war which would not be

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triable by military tribunal here, either because they

are not recognized by our courts as violations of the

law of war or because they are of that class of

offenses constitutionally triable only by a jury.

Id. at 29 (citing, as an example of the latter, Ex parte Milligan,

71 U.S. (4 Wall.) 2 (1866)). Thus, “our courts” may recognize

fewer law of war offenses than other countries’ courts, whether

because they disagree about the content of international law or

because of independent constitutional limitations. In the same

vein, the Supreme Court recognized that Congress had

“adopt[ed] the system of common law applied by military

tribunals so far as it should be recognized and deemed applicable

by the courts.” Id. at 30. The Court in Hamdan likewise treated

“the American common law of war” as a source of constraint,

not expansion. 548 U.S. at 613.

The Supreme Court has adhered to Quirin’s understanding

of the meaning of the “law of war” for over seventy years. In

Application of Yamashita, 327 U.S. 1 (1946), the Court

reaffirmed Quirin’s “governing principles,” id. at 9, and its

statement that Congress had exercised its power to “define and

punish Offenses against the Law of Nations, of which the law of

war is a part,” id. at 7 (alterations omitted) (citing U.S. CONST.

art. I, § 8, cl. 10). The Court held that the offenses there,

stemming from the commanding general’s breach of duty to

protect civilian populations and prisoners of war against

atrocities committed by troops under his command, were

“recognized in international law as violations of the law of war.”

Id. at 14. To determine the content of the law of war, the Court

looked to international sources, id. at 14–16, and it concluded

that those sources alone “plainly imposed on petitioner . . . an

affirmative duty” that he had violated. Id. at 16. Having

established that the charged offenses were violations of the

international law of war, the Court mentioned two domestic field

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orders, but only to confirm domestic recognition of the duty

imposed by the Hague and Geneva Conventions. See id. at 16 &

n.3. Again, in Johnson v. Eisentrager, 339 U.S. 763 (1950), the

Supreme Court looked only to international law sources to

determine whether the charged offense, “[b]reach of the terms of

an act of surrender,” was a “war crime.” Id. at 787–88 & n.13.

More recently, in Hamdan, the Supreme Court reaffirmed

Quirin’s principle that the “law of war” means “the body of

international law governing armed conflict.” 548 U.S. at 641

(Kennedy, J., concurring in part); id. at 603 (plurality op.)

(quoting Quirin, 317 U.S. at 30, 35–36).

The Supreme Court’s reason in Quirin for recognizing an

exception to Article III — that international law of war offenses

did not entail a right to trial by jury at common law, 317 U.S. at

40–41 — does not apply to conspiracy as a standalone offense.

The Court in Quirin held that the international law of war

offense of unlawful belligerency was triable by law of war

military commissions. 317 U.S. at 36, 46. Although the Court

had no occasion to speak more broadly about whether other

offenses came within the Article III exception, its reasoning

precludes an Article III exception for conspiracy, which did

entail a right to trial by jury at common law. In Callan v.

Wilson, 127 U.S. 540 (1888), cited in Quirin, 317 U.S. at 39, the

Court pointed to authorities “sufficient to show” that “the nature

of the crime of conspiracy at common law . . . [was] an offense

of a grave character, affecting the public at large,” such that a

person so charged could not be tried without a jury, see Callan,

127 U.S. at 556. The reasoning in Quirin also counsels against

expanding the exception beyond international law of war

offenses. Stating that “[f]rom the very beginning of its history

th[e] Court has recognized and applied the law of war as [being]

part of the law of nations,” Quirin, 317 U.S. at 27, the Court

explained that some offenses may not be triable by military

commission because “they are not recognized by our courts as

15

violations of the law of war,” id. at 29. No subsequent Supreme

Court holding suggests that law of war military commissions

may exercise jurisdiction over offenses not recognized by the

“law of war” as defined in Quirin.

B.

The parties agree that Bahlul was tried by a law of war

military commission that had jurisdiction to try charges for

offenses against the law of war as defined in Quirin. The

government concedes that conspiracy is not a violation of the

international law of war. See U.S. Appellee’s Br. to the En Banc

Court at 34 (July 10, 2013). The question, therefore, is whether

a law of war military commission may try domestic offenses —

specifically conspiracy — without intruding on the judicial

power in Article III.

The government insists that the Article III exception

identified in Quirin is not limited to international law of war

offenses because “the sabotage offense at issue in Quirin —

which the Court viewed as akin to spying — is not and has never

been an offense under the international law of war.” Appellee’s

Br. 54. Yet the Supreme Court in Quirin concluded otherwise.

It looked to “authorities on International Law” who “regarded as

war criminals” saboteurs who passed behind enemy lines without

uniform. 317 U.S. at 35 & n.12. It relied on international

sources to establish that the offense was recognized “[b]y

universal agreement and practice.” Id. at 30 & n.7, 31 n.8, 35

n.12. And it quoted language from early statutes and military

tribunal proceedings where spying was identified as punishable

by military tribunal under the “law and usage of nations.” Id. at

31 n.9, 41. The government points to scholarly criticism of the

Court’s conclusion, see Appellee’s Br. 32, but this court is bound

by the Supreme Court’s analysis in Quirin, which was premised

on sabotage being an international offense. See Quirin, 317 U.S.

at 35–36.

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Alternatively, the government maintains that even if Quirin

did not extend the Article III exception to domestic offenses,

historical practice demonstrates that it has been so extended. See

Appellee’s Br. 20, 31–39. The Supreme Court, however, when

relying on historical practice to analyze the separation of powers,

has required much more evidence of a settled tradition than the

government has identified. For instance, in Myers v. United

States, 272 U.S. 52, 175 (1926), the Court held, upon reviewing

more than seven decades in which Presidents had continuously

removed Executive Branch officers without congressional

involvement, that Congress lacked authority to restrict the

President’s removal power. In United States v. Curtiss-Wright

Export Corp., 299 U.S. 304 (1936), the Court rejected, in view

of an “unbroken legislative practice which has prevailed almost

from the inception of the national government to the present

day,” the argument that a joint resolution of Congress

authorizing the President to determine whether to embargo the

sale of arms and munitions to belligerents in a foreign war was

an unlawful delegation of legislative power. Id. at 322.

Recently, in National Labor Relations Board v. Noel Canning,

134 S. Ct. 2550 (2014), the Court defined the scope of the

President’s authority under the Recess Appointments Clause,

U.S. CONST. art. II, § 2, cl. 3, based on a lengthy and dense

historical practice. Upon identifying “thousands of intra-session

recess appointments” and noting that “Presidents since Madison

have made many recess appointments filling vacancies that

initially occurred prior to a recess,” id. at 2562, 2571, the Court

concluded that the Clause authorized those types of

appointments. By contrast, where the Court found only a

handful of instances in which a President had made a recess

appointment during an inter-session recess lasting less than ten

days, the Court held that those recesses were “presumptively too

short to fall within the Clause.” Id. at 2567.

The history on which the government relies fails to

17

establish a settled practice of trying non-international offenses in

law of war military commissions. The longstanding statutes

conferring military jurisdiction over charges of spying and aiding

the enemy do not, as the government maintains, demonstrate that

domestic offenses come within the Article III exception. The

Congresses that enacted those statutes viewed those offenses as

punishable under the international law of war. The 1806 statute

“imposed the death penalty on alien spies ‘according to the law

and usage of nations, by sentence of a general court martial.’”

Quirin, 317 U.S. at 41 (quoting Act of Congress of Apr. 10,

1806, 2 Stat. 371). A 1776 Resolution adopted by the

Continental Congress contained a nearly identical provision. Id.

at 41 & n.13 (citing Edmund M. Morgan, Court-Martial

Jurisdiction over Non-Military Persons Under the Articles of

War, 4 Minn. L. Rev. 79, 107–09 (1920) (quoting Resolution of

Aug. 21, 1776, 1 JOURNALS OF CONGRESS 450)). In 1865, the

Attorney General of the United States, James Speed, concluded

in a formal opinion that “to act as spy is an offence against the

laws of war,” and that “every lawyer knows that a spy was a

well-known offender under the laws of war.” Military

Commissions, 11 Op. Att’y Gen. 297, 312, 313 (1865). The oft-

cited William Winthrop, the “Blackstone of Military Law,”

Hamdan, 548 U.S. at 597 (plurality op.) (quoting Reid, 354 U.S.

at 19 n.38 (plurality op.)), reached the same conclusion. See W.

Winthrop, MILITARY LAW AND PRECEDENTS 769–70 (2d ed.

1920). Even authority relied upon by the government indicates

that during the early Republic spies were considered “war

criminals.” See Appellee’s Br. 31–32 (quoting 2 L. Oppenheim,

INTERNATIONAL LAW 287 (4th ed. 1926)).

But even if spying and aiding the enemy were not

international offenses, their historical pedigrees stand in marked

contrast to that of conspiracy. Both of those offenses have been

subject to military jurisdiction since the ratification of the

Constitution. See Quirin, 317 U.S. at 41; Act of Apr. 10, 1806,

18

2 Stat. 359, 371. Congress has reenacted the spying and aiding

the enemy statutes on multiple occasions, see, e.g., Act of June

4, 1920, Pub. L. No. 66-242, 41 Stat. 759, 804; Act of Aug. 29,

1916, Pub. L. No. 64-242, 39 Stat. 619, 663; Act of Mar. 3, 1863,

12 Stat. 731, 737, and scores of law of war military tribunals

have tried the offenses, see Quirin, 317 U.S. at 42 n.14. When

analyzing separation-of-powers challenges, the Supreme Court

has explained, “the practical construction of the [C]onstitution,

as given by so many acts of [C]ongress, and embracing almost

the entire period of our national existence, should not be

overruled, unless upon a conviction that such legislation was

clearly incompatible with the supreme law of the land.”

Marshall Field & Co. v. Clark, 143 U.S. 649, 691 (1892); see

Mistretta v. United States, 488 U.S. 361, 401 (1989); Stuart v.

Laird, 5 U.S. (1 Cranch) 299, 309 (1803).

The history of inchoate conspiracy being tried by law of

war military tribunals is thin by comparison and equivocal at

best. The government has identified only a handful of

ambiguous examples, and none in which an inchoate conspiracy

conviction was affirmed by the Judicial Branch. The examples

are unpersuasive in themselves and insufficient to establish a

longstanding historical practice.

First, although the charges against the Lincoln assassins

referred to conspiracy, the specifications listed the elements of

the completed offense. See J. Holt & T. Ewing, CHARGE AND

SPECIFICATION AGAINST DAVID E. HEROLD, ET AL. 3 (1865)

(Petr.’s. Supp. App’x 77–78); see also Hamdan, 548 U.S. at 604

n.35 (plurality op.); id. at 609. The Attorney General’s formal

opinion in 1865 described the charge as “the offence of having

assassinated the President.” 11 Op. Att’y Gen. at 297; see id. at

316–17. At the time, it was unclear that conspiracy could even

be charged separately from the object offense, once completed.

See Iannelli v. United States, 420 U.S. 770, 781 & n.13 (1975)

19

(citing Hampton L. Carson, The Law of Criminal Conspiracies

and Agreements as Found in the American Cases, in R. Wright,

THE LAW OF CRIMINAL CONSPIRACIES AND AGREEMENTS 191

(1887)). When Congress first enacted a conspiracy statute in

1867, the offense carried only a two-year penalty. See Act of

Mar. 2, 1867, 14 Stat. 471, 484.

Because of conspiracy’s uncertain legal status at the time,

the dissent’s theory that “[t]he circumstances surrounding the

Lincoln assassination” indicate that “the criminal defendants

could only have been charged with conspiracy,” Dis. Op. 62–63

(emphasis in original), is mere speculation, especially in view of

the contrary contemporary analysis by the Attorney General. See

11 Op. Att’y Gen. at 297, 316–17. Moreover, Winthrop noted

that the Lincoln assassins’ tribunal was a mixed martial law and

law of war military commission. See W. Winthrop, MILITARY

LAW AND PRECEDENTS, at 839 & n.5; cf. id. at 842. The dissent

appears to disagree with Winthrop (on whom it otherwise relies,

see Dis. Op. 54, 59–61, 67) regarding the jurisdictional basis for

the assassins’ tribunal. Compare id. at 63–64, with W.

Winthrop, MILITARY LAW AND PRECEDENTS, at 839 & n.5. The

dissent further ignores Winthrop’s explanation that conspiracy

was a “civil crime” or “crime against society” and not a law of

war offense. W. Winthrop, MILITARY LAW AND PRECEDENTS,

at 842. Where Winthrop listed the law of war violations that had

“principally” been charged in U.S. military commissions,

conspiracy was not among them. See id. at 839–40. In response,

the dissent cites Milligan, 71 U.S. at 127, for the proposition that

military tribunals cannot exercise martial law jurisdiction unless

the civil courts are closed, see Dis. Op. 64, even though Milligan

was decided after the Lincoln assassins’ prosecution. The

unreported district court opinion in Ex parte Mudd, 17 F. Cas.

954 (1868), hardly strengthens the dissent’s position, see Dis.

Op. 64 n.21; the district court described the offense as

“assassination” and only used “conspiracy” in the same terms as

20

the charging document, while distinguishing Milligan based on

the state of war in the Capital, not based on the nature of the

offense. Mudd, 17 F. Cas. at 954.

Second, although the charges against the Nazi saboteurs in

Quirin included conspiracy to commit the charged offenses, the

Court upheld the jurisdiction of the law of war military

commission only as to the charge of sabotage and did not

mention the conspiracy charge in its analysis. See Quirin, 317

U.S. at 46. Similarly, although William Colepaugh was

convicted of sabotage and spying, in addition to conspiracy to

commit those offenses, the U.S. Court of Appeals for the Tenth

Circuit affirmed the jurisdiction of the military tribunal in view

of the law of war acts of belligerency without addressing the

conspiracy charge. See Colepaugh v. Looney, 235 F.2d 429,

431–32 (10th Cir. 1956). Moreover, in both Quirin and

Colepaugh, the charged conspiracies involved completed

offenses. By contrast, none of the underlying overt acts for

Bahlul’s conspiracy conviction was a law of war offense itself,

and the government declined to charge him with vicarious

liability under Pinkerton v. United States, 328 U.S. 640 (1946),

or with joint criminal enterprise, see Bahlul, 767 F.3d at 38–39

(Rogers, J., concurring in the judgment in part and dissenting)

(citing U.S. Appellee’s Br. to the En Banc Court at 47 (Jul. 10,

2013)).

Third, the government asserts that “during the Civil War,

defendants were regularly convicted of conspiracies that were

charged as unconsummated offenses,” Appellee’s Br. 37, but it

cites only a single instance. Col. George St. Leger Grenfel was

convicted by a military tribunal of conspiracy to free prisoners

of war in Chicago and to destroy that city. See GENERAL

COURT-MARTIAL ORDERS No. 452 (Aug. 22, 1865). As Bahlul

points out, however, Grenfel’s commission, like that of the

Lincoln assassins, was a “hybrid” commission exercising

21

jurisdiction based in part on the President’s declaration of martial

law. See Reply Br. 18 (citing Hamdan, 548 U.S. at 609 n.37

(plurality op.); W. Winthrop, MILITARY LAW AND PRECEDENTS,

at 839 n.5); S. Starr, COLONEL GRENFELL’S WARS: THE LIFE OF

A SOLDIER OF FORTUNE, 5, 219 (1971) (cited in Appellee’s Br.

37). In defending the Grenfel commission’s jurisdiction, the

prosecution relied on the fact that “martial law obtained

throughout the United States and the Territories during the

continuance of the [Civil] [W]ar.” Judge Advocate’s Reply,

Courtroom, Cincinnati, Ohio, Jan. 17, 1865, United States v.

Walsh, et al., reprinted in H. EXEC. DOC. NO. 50, 39th Cong., 2d

Sess., at 20. The Grenfel commission, like the Lincoln assassins’

commission, “is at best an equivocal” case. Hamdan, 548 U.S.

at 604 n.35 (plurality op.).

The historical examples identified by the government thus

fall far short of what the Supreme Court has required when using

historical practice to interpret the constitutional separation of

powers. Our dissenting colleague adds only the orders of

General MacArthur and General Wedemeyer from the end of

World War II and the Korean Conflict. See Dis. Op. 66 &

nn.22–23. But the en banc court dismissed the persuasive force

of such military orders for lack of high-level Executive Branch

consultation. See Bahlul, 767 F.3d at 25 n.16. And during the

Korean Conflict there apparently were no trials conducted by

United Nations Military Commissions. See Jordan J. Paust et al.,

INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS 724

(1996).

Finally, the government asserts that any “enemy

belligerent” can be tried by a military commission regardless of

the offense. Appellee’s Br. 56. But the Supreme Court has

focused on “the question whether it is within the constitutional

power of the national government to place petitioners upon trial

before a military commission for the offenses with which they

22

are charged.” Quirin, 317 U.S. at 29 (emphasis added). Thus,

in Quirin, the Court “assume[d] that there are acts” that could

not be tried by military commission “because they are of that

class of offenses constitutionally triable only by a jury.” Id.

(emphasis added). Likewise, in Yamashita, the Court

“consider[ed] . . . only the lawful power of the commission to try

the petitioner for the offense charged.” 327 U.S. at 8 (emphasis

added). In Hamdan, the Court explained that the status of the

offender (being a member of a foreign armed force) and the

nature of the offense were both necessary conditions for the

exercise of jurisdiction by a law of war military commission.

See Hamdan, 548 U.S. at 597–98 (plurality op.) (citing W.

Winthrop, MILITARY LAW AND PRECEDENTS, at 836–39); accord

id. at 2826 (Thomas, J., dissenting).

C.

This court need not decide the precise relationship between

Bahlul’s Article I and Article III challenges. In Quirin, the

Supreme Court’s Article III analysis did not look to Article I at

all. See Quirin, 317 U.S. at 38–46. In some contexts, however,

Article III exceptions have turned on the extent of congressional

power. See Palmore v. United States, 411 U.S. 389, 402–04

(1973); Kinsella v. United States ex rel. Singleton, 361 U.S. 234,

236–38 (1960). Upon examining the government’s Article I

contentions, we conclude that they do not call into question the

conclusion that the Article III exception for law of war military

commissions does not extend to the trial of domestic crimes in

general, or inchoate conspiracy in particular.

1. The government maintains that the war powers in Article

I vest Congress with broad authority to subject war-related

offenses to the jurisdiction of military commissions. See

Appellee’s Br. 27–30. The war powers include the power to

“define and punish . . . Offences against the Law of Nations,”

U.S. CONST. art. I, § 8, cl. 10, “declare War,” id. § 8, cl. 11,

23

“raise and support Armies,” id. § 8, cl. 12, “provide and maintain

a Navy,” id. § 8, cl. 13, “make Rules for the Government and

Regulation of the land and naval Forces,” id. § 8, cl. 14, “provide

for calling forth the Militia,” id. § 8, cl. 15, and to “make all

Laws which shall be necessary and proper for carrying into

Execution the foregoing Powers,” id. § 8, cl. 18. Because the

war powers contain no textual limitation based on international

law, the government concludes there is no such restriction on

military commission jurisdiction. See Appellee’s Br. 29–30. In

the government’s view, the war powers support military

jurisdiction over any offense “committed by an enemy

belligerent during and in relation to an armed conflict with the

United States [that] . . . has a palpable effect on the nature of that

conflict.” Oral Arg. Tr. 49.

The Supreme Court has looked to the Define and Punish

Clause in determining whether Congress may designate

particular offenses within the jurisdiction of a law of war

military commission. The Court in Quirin, Yamashita, and

Hamdan did look to the war powers in discussing congressional

authority to establish military commissions. See Hamdan, 548

U.S. at 591 (plurality op.); Yamashita, 327 U.S. at 12; Quirin,

317 U.S. at 26; see also W. Winthrop, MILITARY LAW AND

PRECEDENTS, at 831 (stating that Congress’s power “to ‘declare

war’ and ‘raise armies’” provided the “original sanction” for

military commissions). But in addressing Congress’s authority

to confer jurisdiction over particular offenses, the Court has

consistently looked to the Define and Punish Clause alone. See

Hamdan, 548 U.S. at 601–02 (plurality op.); Yamashita, 327

U.S. at 7; id. at 26 (Murphy, J., dissenting); Quirin, 317 U.S. at

28. In Yamashita, the Court emphasized the distinction,

explaining that “the [military] commission derives its existence”

from the war powers, 327 U.S. at 12 (emphasis added), but that

its jurisdiction over specific offenses comes from Congress’s

“exercise of the power conferred upon it by Article I, § 8, Cl. 10

24

of the Constitution to ‘define and punish * * * Offenses against

the Law of Nations * * *,’ of which the law of war is a part.” Id.

at 7. Winthrop endorsed this distinction in stating that Civil

War-era legislation subjecting “spies and guerillas” to military

jurisdiction “may be regarded as deriving its authority from” the

Define and Punish Clause. W. Winthrop, MILITARY LAW AND

PRECEDENTS, at 831.

In applying the Define and Punish Clause, the Supreme

Court long ago cautioned that “[w]hether the offense as defined

is an offense against the law of nations depends on the thing

done, not on any declaration to that effect by [C]ongress.”

United States v. Arjona, 120 U.S. 479, 488 (1887). As noted, the

government has conceded that conspiracy is not an international

war crime. Notwithstanding the atrocities at issue, the

International Military Tribunal at Nuremberg considered and

rejected conspiracy to commit war crimes as an international law

of war offense. See 22 TRIAL OF THE MAJOR WAR CRIMINALS

B EFORE THE I NTERNATIONAL M ILITARY T RIBUNAL :

NUREMBERG, 14 NOVEMBER 1945–1 OCTOBER 1946, at 469

(1948). Conspiracy to commit war crimes is included neither in

the major treaties on the law of war,1 nor in the jurisdiction of

1

See, e.g., Protocol Additional to the Geneva Conventions of 12

August 1949, and Relating to the Protection of Victims of Non-

International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609;

Protocol Additional to the Geneva Conventions of 12 August 1949,

and Relating to the Protection of Victims of International Armed

Conflicts, June 8, 1977, 1125 U.N.T.S. 3; Geneva Convention Relative

to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,

6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the

Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75

U.N.T.S. 135; Geneva Convention for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of Armed

Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva

Convention for the Amelioration of the Condition of the Wounded and

25

modern war crimes tribunals.2 Congress cannot, pursuant to the

Define and Punish Clause, declare an offense to be an

international war crime when the international law of war

concededly does not. See United States v. Furlong, 18 U.S. (5

Wheat.) 184, 198 (1820). The exceptions — conspiracy to

commit genocide and common plan to wage aggressive war, see

Hamdan, 548 U.S. at 610 (plurality op.) — are not at issue here,

for Bahlul was charged with neither. In light of the international

community’s explicit and repeated rejection of conspiracy as a

law of war offense, we are puzzled by our dissenting colleague’s

statement that “[t]he international community does recognize

that Bahlul violated the principles of the law of nations,” Dis.

Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75

U.N.T.S. 31; Convention Respecting the Laws and Customs of War on

Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; Convention with

Respect to the Laws and Customs of War on Land, July 29, 1899, 32

Stat. 1803, 1 Bevans 247.

2

See Statute of the Special Court for Sierra Leone, Jan. 16, 2002,

2178 U.N.T.S. 138; Rome Statute of the International Criminal Court,

July 17, 1998, 2187 U.N.T.S. 90; Statute of the International Tribunal

for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994),

reprinted in 33 I.L.M. 1598, 1602; Statute of the International

Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, U.N.

Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192. Some

modern tribunals recognize war crimes liability through participation

in a joint criminal enterprise, see Prosecutor v. Milutinovic, Case No.

IT–99–37–AR72, Decision on Dragoljub Ojdanic’s Motion

Challenging Jurisdiction—Joint Criminal Enterprise, ¶ 26 (Int'l Crim.

Trib. for the Former Yugoslavia, Appeals Chamber, May 21, 2003);

Rwamakuba v. Prosecutor, Case No. ICTR–98–44–AR72.4, Decision

on Interlocutory Appeal Regarding Application of Joint Criminal

Enterprise to the Crime of Genocide, ¶ 30 (Oct. 22, 2004), but the

prosecutor at Bahlul’s military commission withdrew that charge

against him, see Trial Tr. 110, 881 (cited in Bahlul, 767 F.3d at 39,

40–41 (Rogers, J., concurring in the judgment in part and dissenting)).

26

Op. 31 (internal quotation marks and italics omitted), and by its

reference to “the international community’s agreement that those

who conspire to commit war crimes can be punished as war

criminals,” id. at 53. There is no such “agreement.” The dissent

offers nothing to support this claim.

Our dissenting colleague also maintains that this court must

accord Congress “‘extraordinary deference when it acts under its

Define and Punish Clause powers.’” Dis. Op. 34 (quoting

Bahlul, 767 F.3d at 59 (Brown, J., concurring in the judgment in

part and dissenting in part)). This court has no occasion to

decide the extent of that deference because the government has

never maintained that Congress defined conspiracy in the 2006

MCA as a violation of the law of nations. The legislative history

of the 2006 MCA is not to the contrary. See id. at 46 n.17. In

maintaining otherwise, the dissent confuses acting pursuant to

the Define and Punish Clause with identifying the content of the

law of nations, see id. at 45–47; Congress purported to do the

former, not the latter. In Bahlul’s case, the “law of nations” is

not “too vague and deficient to be a rule,” id. at 32 (quotation

marks omitted); to the contrary, it quite clearly does not view

conspiracy to be an independent war crime, as the government

has conceded.

To the extent our colleague would interpret the Define and

Punish Clause to confer open-ended congressional authority to

create new war crimes, see Dis. Op. 38–43, the Supreme Court

has rejected such an approach. In Furlong, 18 U.S. (5 Wheat.)

184, the Court explained with regard to piracy, the other object

of the Define and Punish Clause: “If by calling murder piracy,

[Congress] might assert a jurisdiction over that offence

committed by a foreigner in a foreign vessel, what offence might

not be brought within their power by the same device?” Id. at

198 (emphasis in original). The same reasoning applies to

“Offenses against the Law of Nations,” the other object of the

27

Define and Punish Clause. U.S. CONST. art. I, § 8, cl. 10.

Congress can neither define as piracy a crime that is clearly not

piracy, nor define as a law of nations offense a crime that is

avowedly not a law of nations offense. In other contexts as well,

the Supreme Court has rejected the limitless form of

congressional power the dissent proposes. Cf. City of Boerne v.

Flores, 521 U.S. 507, 529 (1997). Contrary to our dissenting

colleague, international law itself affords no limit because it does

not purport to identify which non-international offenses can and

cannot be treated as domestic war crimes; the dissent points to no

offenses whose trial by military commission are “inconsistent

with” or not “permit[ted]” by international law. Dis. Op. 53, 38

(italics omitted). In urging such a limitation, however, the

dissent does reveal one shared premise: that the content of

international law constrains congressional authority under the

Define and Punish Clause. According to the dissent,

congressional action under the Clause must be “consistent with

international law,” id. at 47, such that Congress may only “track

somewhat ahead of the international community,” id. at 43

(emphasis added). Thus, despite some rhetorical protestations to

the contrary, see id. at 1, 42, 73, the dissent’s disagreement is not

about whether international law constrains congressional

authority, only to what extent.

The dissent’s reliance on Yamashita as support for its

understanding of the Define and Punish Clause, see Dis. Op.

35–37, is misplaced. In Yamashita, the Supreme Court did not

address the nature of Define and Punish Clause authority at all,

because Congress had not defined any specific offenses. See

Yamashita, 327 U.S. at 7. The Court therefore had to undertake

its own analysis of international law, and it concluded that the

Hague and Geneva Conventions “plainly imposed on petitioner”

a duty that he had violated. Id. at 16. It is therefore difficult to

understand how Yamashita affects the type of deference owed to

Congress one way or the other.

28

2. Nor does the Necessary and Proper Clause allow

Congress to do what its express powers do not. See Toth, 350

U.S. at 21–22. The government maintains that even if

Congress’s authority arose only under the Define and Punish

Clause, “Congress is not restricted under that Clause only to

criminal offenses that are violations of international law.”

Appellee’s Br. 43. “Rather, Congress may, under the Necessary

and Proper Clause, proscribe conspiracy to commit war crimes,

such as terrorist attacks against civilians, that are themselves

violations of the law of nations as a necessary and proper

implementation of its power and responsibility to prevent and

punish such violations.” Id. The Supreme Court has adopted a

different view.

In Toth, 350 U.S. at 22, the Supreme Court explained that

it was “not willing to hold that power to circumvent [jury]

safeguards should be inferred through the Necessary and Proper

Clause.” It described the “great difference between trial by jury

and trial by selected members of the military forces,” id. at 17,

and explained that “[t]here are dangers lurking in military trials

which were sought to be avoided by the Bill of Rights and

Article III of our Constitution,” id. at 22. In Singleton, the Court

rejected expansion of military jurisdiction through the Necessary

and Proper Clause because “[t]his Court cannot diminish and

expand that power, either on a case-by-case basis or on a

balancing of the power there granted Congress against the

safeguards of Article III and the Fifth and Sixth Amendments.”

361 U.S. at 246. The Court explained: “If the exercise of the

power is valid it is because it is granted in Clause 14 [the Make

Rules Clause], not because of the Necessary and Proper Clause.”

Id. at 247. “We are therefore constrained to say that since this

Court has said that the Necessary and Proper Clause cannot

expand Clause 14 so as to include prosecution of civilian

dependents for capital crimes, it cannot expand Clause 14 to

include prosecution of them for noncapital offenses.” Id. at 248.

29

As the plurality in Reid emphasized, “the jurisdiction of military

tribunals is a very limited and extraordinary jurisdiction derived

from the cryptic language in Art. I, § 8, and, at most, was

intended to be only a narrow exception to the normal and

preferred method of trial in courts of law.” 354 U.S. at 21; see

Hamdan, 548 U.S. at 590 (plurality op.). Consequently, “the

Necessary and Proper Clause cannot operate to extend military

jurisdiction to any group of persons beyond that class described

in” an enumerated Article I power. Reid, 354 U.S. at 20–21

(plurality op.). “Under the grand design of the Constitution

civilian courts are the normal repositories of power to try persons

charged with crimes against the United States.” Id. at 21.

The government’s response is that Congress may enact

legislation “necessary to comply with our nation’s international

responsibilities.” Appellee’s Br. 45. In Arjona, 120 U.S. at 484,

the Supreme Court upheld a counterfeiting prohibition because

“[t]he law of nations requires every national government . . . to

punish those who, within its own jurisdiction, counterfeit the

money of another nation.” The Court observed that without the

criminal statute, the United States would “be unable to perform

a duty which they may owe to another nation, and which the law

of nations has imposed on them as part of their international

obligations.” Id. at 487. Here, the government points to the

Geneva Convention Relative to the Protection of Civilian

Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6

U.S.T. 3516 (“Geneva IV”), which prohibits “[c]ollective

penalties and likewise all measures of intimidation or of

terrorism.” Id. art. 33. The Convention requires signatories to

“undertake to enact any legislation necessary to provide effective

penal sanctions for persons committing, or ordering to be

committed, any of the grave breaches of the present

Convention,” id. art. 146, which include the “willful killing . . .

of a protected person,” id. art. 147, defined as “those who . . .

find themselves, in case of a conflict or occupation, in the hands

30

of a Party to the conflict or Occupying Power of which they are

not nationals,” id. art. 4. Each signatory “shall take measures

necessary for the suppression of all acts contrary to the

provisions of the present Convention.” Id. art. 146.

Even if Congress has authority to criminalize non-

international offenses pursuant to the Define and Punish Clause,

as supplemented by the Necessary and Proper Clause, the

government fails to explain why such congressional power to

prohibit conduct implies the power to establish military

jurisdiction over that conduct. Military jurisdiction over the

offenses that the Supreme Court has previously upheld under the

Define and Punish Clause — such as spying and sabotage —

have a textual basis in the Constitution: The “Law of Nations,”

U.S. CONST. art. I, § 8, cl. 10, itself makes those offenses

“cognizable by [military] tribunals.” Quirin, 317 U.S. at 28; see

id. at 41 & n.13; Act of Apr. 10, 1806, 2 Stat. 359, 371; 11 Op.

Att’y Gen. at 316; W. Winthrop, MILITARY LAW AND

PRECEDENTS, at 769. Court-martial jurisdiction similarly has a

textual basis in the Constitution, which authorizes Congress to

“make Rules for the Government and Regulation of the land and

naval Forces,” U.S. CONST. art. I, § 8, cl. 14, and exempts those

offenses from trial by jury, see id. amend. V. The sabotage

offense in Quirin was subject to military jurisdiction based on “a

construction of the Constitution which has been followed since

the founding of our government.” 317 U.S. at 41. Military

jurisdiction over conspiracy, by contrast, has neither an express

textual basis nor an established historical tradition.

The government maintains that under the Necessary and

Proper Clause, “[i]f commission of the substantive crime that is

the conspiracy’s object would be within the scope of permissible

congressional regulation, then so is the conspiracy.” Appellee’s

Br. 45. But again, Bahlul’s Article III challenge is not that

Congress lacks authority to prohibit his conduct; rather, he

31

challenges Congress’s authority to confer jurisdiction in a

military tribunal. Absent a textual or historical basis for

prosecuting conspiracy as a standalone offense in a law of war

military commission, the government’s position is confounded

by the Supreme Court’s repeated reluctance to extend military

jurisdiction based on the Necessary and Proper Clause. See, e.g.,

Singleton, 361 U.S. at 246–48; Reid, 354 U.S. at 20–21 (plurality

op.); Toth, 350 U.S. at 21–22. The cases on which the

government relies, such as Callanan v. United States, 364 U.S.

587, 593–94 (1961), and United States v. Feola, 420 U.S. 671,

694 (1975), involve criminal conspiracy prosecutions in civil

courts. See Appellee’s Br. 45–46 (also citing United States v.

Price, 265 F.3d 1097, 1107 n.2 (10th Cir. 2001); United States

v. Jannotti, 673 F.2d 578, 591–94 (3d Cir. 1982)).

D.

Before concluding we address some further flaws in our

dissenting colleague’s opinion.

First, the dissent relies on inapposite authorities regarding

the source of congressional authority for law of war military

commissions. Its citations refer to military commissions

exercising jurisdiction far beyond the law of war. Thus, in Ex

parte Milligan, 71 U.S. 2 (1866), the four Justices cited by the

dissent, see Dis. Op. 55, were discussing courts martial and

military commissions whose jurisdiction was based on military

government and martial law. See Milligan, 71 U.S. at 141–42

(Chase, C.J., concurring in the result); see generally Hamdan,

548 U.S. at 595–98 (plurality op.), 683 (Thomas, J., dissenting);

Bahlul, 767 F.3d at 7. The constitutional authority for those

commissions, whose jurisdiction may include domestic crimes,

see Hamdan, 548 U.S. at 595–96 (plurality op.); Bahlul, 767

F.3d at 7, does not extend to law of war commissions. The

dissent’s reliance on Madsen v. Kinsella, 343 U.S. 341 (1952);

see Dis. Op. 55, 58, 61, is likewise misplaced; that case involved

32

a military-government commission, not a law of war military

commission. Madsen, 343 U.S. at 343–44, 345–48. And the

dissent’s reliance on Winthrop’s statement that “in general, it is”

the war powers “from which the military tribunal derives its

original sanction,” Dis. Op. 60 (alterations omitted) (quoting W.

Winthrop, MILITARY LAW AND PRECEDENTS, at 831), ignores

both that Winthrop was discussing all three kinds of military

commission, stating the commission’s “authority is thus the same

as the authority for the making and waging of war and for the

exercise of military government and martial law,” and that

Winthrop looked exclusively to the Define and Punish Clause as

the source of authority for law of war commissions to try spying

and aiding the enemy, see W. Winthrop, MILITARY LAW AND

PRECEDENTS, at 831.

Second, the dissent maintains that if conspiracy does not

fall within the Article III exception for law of war military

commissions, then Bahlul’s conviction must be affirmed under

Schor’s multi-factor balancing approach. See Dis. Op. 73–80.

The Supreme Court has never suggested that an entire criminal

adjudication outside an established Article III exception could

ever satisfy the Schor analysis. The dissent cites Palmore to

suggest otherwise, see id. at 72, but the Court conducted no

balancing analysis in Palmore because the case involved a

criminal adjudication within the established Article III exception

for territorial courts. Palmore, 411 U.S. at 403; see Northern

Pipeline, 458 U.S. at 55 & n.16 (plurality op.). But even

accepting the dissent’s premise, its analysis fails on its own

terms. Bahlul’s military commission is on the wrong side of

nearly every balancing factor that the Supreme Court has

applied.

With respect to what the dissent characterizes as the “most

important[]” factor, Dis. Op. 74, the 2006 MCA provides for

appellate review “only with respect to matters of law, including

33

the sufficiency of the evidence to support the verdict,” 10 U.S.C.

§ 950g(d). Sufficiency review is “sharply limited,” Wright v.

West, 505 U.S. 277, 296 (1992), and “very deferential[],” United

States v. Harrison, 931 F.2d 65, 71 (D.C. Cir. 1991). This is

exactly the type of limited judicial review the Supreme Court has

repeatedly held offends Article III. See Stern, 131 S. Ct. at 2611;

Schor, 478 U.S. at 853; Northern Pipeline, 458 U.S. at 85, 86

n.39 (plurality op.); id. at 91 (Rehnquist, J., concurring in the

judgment); Crowell v. Benson, 285 U.S. 22, 57 (1932). The

dissent pretends otherwise, glossing over the details of Schor and

ignoring Stern and Northern Pipeline. See Dis. Op. 74–76. In

Stern, the Supreme Court faulted the bankruptcy statute for

providing judicial review “only under the usual limited appellate

standards,” which “require[d] marked deference to, among other

things, the [tribunal’s] findings of fact.” 131 S. Ct. at 2611. The

Court reached the same conclusion in Northern Pipeline, 458

U.S. at 85, 86 n.39 (plurality op.); id. at 91 (Rehnquist, J.,

concurring in the judgment). In Schor, the Court noted that

“CFTC orders are [] reviewed under the same ‘weight of the

evidence’ standard sustained in Crowell, rather than the more

deferential [clearly erroneous] standard found lacking in

Northern Pipeline.” 478 U.S. at 853. The “sufficiency of the

evidence” standard in the 2006 MCA is more deferential than the

“usual limited appellate standards” rejected in Stern and the

“clearly erroneous” standard rejected in Northern Pipeline and

Schor. Rather than addressing these holdings directly, the

dissent relies on inapposite precedent involving (1) “adjunct”

fact-finders within Article III courts, see Dis. Op. 75 (citing

Crowell, 285 U.S. at 51); see also Stern, 131 S. Ct. at 2619;

Northern Pipeline, 458 U.S. at 78 (plurality op.), (2) factual

review in appeals from state courts and Article III district courts,

see Dis. Op. 75–76 (citing Jackson v. Virginia, 443 U.S. 307,

318–19 (1979); The Francis Wright, 105 U.S. 381, 386 (1881)),

and (3) cases within the “public rights” exception to Article III,

where there is no reason to apply a balancing analysis, see Dis.

34

Op. 76 (citing Estep v. United States, 327 U.S. 114 (1946)). No

Article III issue was raised or addressed in Estep or Jackson.

Thus, the dissent’s “most important[]” factor — appellate review

for legal error only, id. at 74 — is one the Supreme Court has

expressly foreclosed.

In Sharif, where the Court upheld adjudication by

bankruptcy courts outside the established Article III exception,

the two necessary factors were the parties’ consent to the

adjudication, and the fact that “Article III courts retain[ed]

supervisory authority over the process.” Sharif, No. 13-935, slip

op. at 12. Neither is true in Bahlul’s case. First, the Court in

Sharif emphasized that litigant consent has been a crucial factor

in its prior decisions on non-Article III adjudication: In Schor,

the Court “[l]ean[ed] heavily on the importance of Schor’s

consent.” Sharif, No. 13-935, slip op. at 9; see id. at 14 n.10.

Subsequent decisions by the Supreme Court involving the

Federal Magistrates Act “reiterated the importance of consent to

the constitutional analysis.” Id. at 10. And in both Stern and

Northern Pipeline, compliance with Article III “turned on”

whether the litigant “truly consent[ed]” to the adjudication. Id.

at 15 (internal quotation marks omitted). Bahlul plainly did not

“consent” to his trial by military commission. As the en banc

court observed, he “objected to the commission’s authority to try

him” and “flatly refused to participate in the military commission

proceedings,” even assuming his objections were “too general”

to raise specific legal claims. Bahlul, 767 F.3d at 10 (internal

quotation marks omitted); see Trial Tr. 96–97 (“Bahlul has made

it very clear that he is boycotting and that he does not recognize

this commission.”); contra Dis. Op. 74. Second, the Court in

Sharif relied on the fact that bankruptcy judges are appointed,

referred cases, allowed to keep cases, supervised, and removable

by Article III judges, who thus retain “total control and

jurisdiction” over bankruptcy adjudication. Sharif, No. 13-935,

slip op. at 13 (internal quotation marks omitted); see id. at 3–4.

35

The Court expressly conditioned its holding on this level of

“control by the Article III courts.” Id. at 12, 15. Nothing of the

sort is true in Bahlul’s case. Military commissions under the

2006 MCA are independent of the Article III courts except for

very limited appellate review.

Another factor the Supreme Court has considered is the

“concern[] that drove Congress to depart from the requirements

of Article III.” Schor, 478 U.S. at 851. In non-Article III

adjudications upheld by the Supreme Court, Congress’s

“concern” was the fact that an ostensibly “private” claim was so

“closely intertwined with a federal regulatory program,”

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 54 (1989), that

the program would be “confounded” without the ability to

adjudicate that claim. Schor, 478 U.S. at 856; see Sharif, No. 13-

935, slip op. at 13; Stern, 131 S. Ct. at 2613–14; Thomas v.

Union Carbide Agric. Products Co., 473 U.S. 568, 593–94

(1985). Neither the government nor the dissent offer any reason

to conclude that otherwise-valid military commission

prosecutions will be “confounded” by the inability to prosecute

non-law of war offenses.

Bahlul’s military commission fails a number of other Schor

factors the dissent neglects to mention. The military commission

resolves “all matters of fact and law in whatever domains of the

law to which” a charge may lead. Stern, 131 S. Ct. at 2610

(internal quotation marks and alterations omitted). It “‘issue[s]

final judgments, which are binding and enforceable,’” id. at

2610–11 (quoting Northern Pipeline, 458 U.S. at 85–86

(plurality op.)); see Schor, 478 U.S. at 853, and “subject to

review only if a party chooses to appeal,” Stern, 131 S. Ct. at

2619. As for the “origins and importance of the right to be

adjudicated,” Schor, 478 U.S. at 851, the right to “[f]reedom

from imprisonment” is one of the oldest and most basic in our

legal system. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The

36

circumstances of Bahlul’s prosecution thus could not be further

from Schor. There, Congress added to an Article I tribunal

otherwise within an established Article III exception the

authority to adjudicate a closely intertwined common-law cause

of action, only with the consent of the parties, without authority

to issue final enforceable judgements, and with meaningful

factual review on appeal. Here, in Bahlul’s case, Congress has

created a standalone Article I tribunal to adjudicate his entire

criminal case without his consent, with the ability to issue final

enforceable judgments, and with almost no factual review on

appeal.

If Bahlul’s military commission falls outside the historical

Article III exception for law of war military commissions, then

there is no question that it usurps “the essential attributes of

judicial power.” Schor, 478 U.S. at 851 (internal quotation

marks omitted). The Supreme Court unanimously agreed in

Stern that “Congress may not vest in a non-Article III court the

power to adjudicate, render final judgment, and issue binding

orders in [an adjudication of private rights], without consent of

the litigants, and subject only to ordinary appellate review.” 131

S. Ct. at 2624 (Breyer, J., dissenting); id. at 2615 (majority op.);

see Thomas, 473 U.S. at 584. The dissent struggles,

unpersuasively, to avoid this conclusion. It suggests that military

commissions somehow do not raise the same separation-of-

powers concerns as bankruptcy courts, see Dis. Op. 79; contra

Hamdan, 456 U.S. at 638 (Kennedy, J., concurring in part), even

though bankruptcy judges are appointed, supervised, and

removable by Article III courts, see Sharif, No. 13-935, slip op.

at 13; Peretz v. United States, 501 U.S. 923, 938–39 (1991). It

points to the established Article III exception for military

commissions, see Dis. Op. 79–80, even though the analysis in

Schor is premised on the adjudication being outside of such an

exception, as the dissent elsewhere acknowledges, see id. at 71,

37

73, 80. The government, unsurprisingly, has barely presented

any balancing analysis, see Appellee’s Br. 51.

III.

For more than seventy years the Supreme Court has adhered

to the definition of the law of war articulated in Quirin, which

the government concedes does not prohibit conspiracy. The

government has failed to identify a sufficiently settled historical

practice for this court to conclude that the inchoate conspiracy

offense of which Bahlul was convicted falls within the Article III

exception for law of war military commissions. Absent further

guidance from the Supreme Court, this court must apply the

settled limitations that Article III places on the other branches

with respect to the “judicial Power of the United States.” U.S.

CONST. art. III, § 1.

Contrary to the government’s suggestion, vacating Bahlul’s

inchoate conspiracy conviction does not “cast doubt on the

constitutional validity of the most prominent military

commission precedents in our nation’s history.” Appellee’s Br.

52. The Lincoln assassins and Colonel Grenfel were tried by

mixed commissions, whose jurisdiction was based on martial

law. The lawfulness of military commission jurisdiction over the

charges against the Nazi saboteurs and Colepaugh was judicially

upheld without having to reach the conspiracy charges. Neither

does our holding “inappropriately restrict Congress’s ability, in

the absence of broad concurrence by the international

community, to adapt the range of offenses triable by military

commission in light of future changes in the practice of modern

warfare and the norms that govern it.” Id. at 38. Military

commissions retain the ability to prosecute joint criminal

enterprise, aiding and abetting, or any other offenses against the

law of war, however it may evolve. Congress retains the

authority it has always had to proscribe domestic offenses

38

through the criminal law in the civil courts. The international

law of war limits Congress’s authority because the Constitution

expressly ties that authority to “the Law of Nations,” U.S.

CONST. art. I, § 8, cl. 10.

Accordingly, we hold that Bahlul’s conviction for inchoate

conspiracy by a law of war military commission violated the

separation of powers enshrined in Article III § 1 and must be

vacated. We need not and do not address Bahlul’s other

contentions.

1

TATEL, Circuit Judge, concurring: Although I agree that

al Bahlul’s conviction runs afoul of Article III of the

Constitution, I write separately to explain why, having joined

the en banc Court in upholding that conviction, I now join an

opinion that invalidates it. I also wish to draw out a few points

that are especially relevant to the separation-of-powers

questions this case presents.

Sitting en banc, this Court decided last year that the Ex

Post Facto Clause does not prevent Congress from granting

military commissions jurisdiction over the crime of

conspiracy. We began by noting that in the months leading up

to the September 11th attacks, when al Bahlul committed his

crimes, federal law gave military commissions jurisdiction

over “offenders or offenses that by statute or by the law of

war may be tried by military commissions.” 10 U.S.C. § 821

(emphasis added). Because no statute on the books in 2001

allowed military commissions to try conspiracy, the en banc

Court needed to determine whether that crime qualified as a

“law of war” offense at that time and was thus triable by

military commission. If so, the Court observed, al Bahlul’s ex

post facto argument would necessarily fail. Reviewing much

of the same history and case law before us now, the en banc

Court was unable to conclude that “conspiracy was not

already triable by law-of-war military commissions” in 2001.

Al Bahlul v. United States, 767 F.3d 1, 18 (D.C. Cir. 2014).

So why the different result here? The answer is the

standard of review. The en banc Court came down the way it

did, and I voted the way I did, because al Bahlul had forfeited

his ex post facto challenge by failing to raise it before the

Commission, so our review was for plain error. Applying that

highly deferential standard, the Court concluded that it was

“not ‘obvious’” that conspiracy was “not . . . triable by law-

2

of-war military commissions” at the time al Bahlul committed

his crimes. Id. at 27.

The government insists that al Bahlul also failed to raise

his Article III argument below. But even if that were true, the

Article III claim is structural, see Reid v. Covert, 354 U.S. 1,

21 (1957) (“Every extension of military jurisdiction is an

encroachment on the jurisdiction of civil courts . . . .”), and

the Supreme Court held in Commodities Futures Trading

Commission v. Schor that structural claims cannot be waived

or forfeited, see 478 U.S. 833, 850–51 (1986) (“To the extent

that [a] structural principle is implicated in a given case, the

parties cannot by consent cure the constitutional difficulty.”).

This Court followed suit in Kuretski v. Commissioner of

Internal Revenue Service, holding that “the Supreme Court

has recognized an exception” to the “general rule” that a party

may forfeit an argument it fails to raise below: we may

nonetheless “hear ‘a constitutional challenge’ . . . if the

‘alleged defect . . . goes to the validity of the . . .

proceeding.’” 755 F.3d 929, 936 (D.C. Cir. 2014) (quoting

Freytag v. Commissioner of Internal Revenue Service, 501

U.S. 868, 879 (1991)). The Supreme Court, moreover,

recently reaffirmed Schor’s holding in Wellness International

Network, Ltd. v. Sharif: “a litigant’s waiver of his ‘personal

right’ to an Article III court is not always dispositive[;] . . .

[t]o the extent that [a] structural principle is implicated in a

given case . . . the parties cannot by consent cure the

constitutional difficulty.” 575 U.S. __ (2015), slip op. at 9

(quoting Schor, 478 U.S. at 850–51); see id., dissenting op. at

12 (Roberts, C.J.) (“nobody disputes that Schor forbids a

litigant from consenting to a constitutional violation when the

structural component of Article III is implicated”) (internal

quotation marks omitted); Op. at 6–7. If, as the dissent argues,

the Court instead intended to hold that structural claims are

now forfeitable, see Dissenting Op. 14–15, thus overruling

3

decades of precedent and requiring us to depart from our own

case law, then I suspect it would have made that point clear.

Under these circumstances, the en banc Court’s

conclusion that it was neither “clear” nor “obvious”—that is,

not “plain”—that the law of war is purely international cannot

determine the outcome of this case. However unclear the law

and the evidence, we must decide not whether the error below

was plain, but whether there was any error at all. In my view,

whether Article III prohibits military commissions from

trying conspiracy turns on what Ex Parte Quirin says and

what Hamdan does not.

Article III provides that Congress “may vest[] . . . the

judicial power of the United States . . . only in courts whose

judges enjoy the protections set forth in that Article.” Stern v.

Marshall, 131 S. Ct. 2594, 2620 (2011) (emphasis added).

The Supreme Court has ruled time and again that this mandate

is essentially ironclad, allowing exceptions only where

“delineated in [the Court’s] precedents, rooted in history and

the Constitution.” Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., 458 U.S. 50, 74 (1982). One such

exception—the only one relevant here—permits Congress to

assign certain criminal cases to military commissions. See Al

Bahlul, 767 F.3d at 7. The question in this case is whether

conspiracy to commit war crimes falls within the military-

commission exception to Article III as articulated by the

Supreme Court.

The search for precedent on that question begins and, for

the most part, ends with Ex Parte Quirin. Although the en

banc Court considered Quirin in some depth, our review here

must be more searching, and that heightened standard leads

me to a different result.

4

In Quirin, the Supreme Court described the contours of

the military-commission exception: commissions, the Court

ruled, may try enemy belligerents for violations of the “law of

war.” Ex Parte Quirin, 317 U.S. 1 (1942). That holding, of

course, goes only so far. Because the conviction the Court

sustained was for passing behind enemy lines out of uniform

in order to attack military assets, and because the Court

assumed that that crime violated the international law of

war—whatever the contemporary scholarly view—it had no

reason to decide whether the law-of-war exception was

limited to international law. See Quirin, 317 U.S. at 36–37;

Op. at 10–11.

That question is critical here because in defending the

constitutionality of MCA section 950, the government

concedes that conspiracy does not violate the international

law of war, thus implicitly acknowledging that by enacting

that provision, Congress was not exercising its Article I

authority to “define” the law of war. Given this, the issue

before us is not whether this court must defer to Congress’s

“definition” of international law, but whether, as the

government insists, the law of war includes some domestic

crimes.

In my view, the weight of the Court’s language in Quirin

strongly indicates that the law-of-war exception is exclusively

international. Making this point repeatedly, the Court

observed that in sending Quirin and his fellow saboteurs to a

military commission, Congress had permissibly “exercised its

authority . . . by sanctioning . . . the jurisdiction of military

commissions to try persons for offenses which, according to

the rules and precepts of the law of nations, and more

particularly the law of war, are cognizable by such tribunals.”

Id. at 28 (emphasis added); see also id. at 29 (calling the law

of war a “branch of international law”). The Court made the

5

point even clearer in Yamashita: military-commission

authority derives from “the Law of Nations . . . of which the

law of war is a part.” 327 U.S. 1, 7 (1946) (alteration in

original) (emphasis added); see also Op. at 12–14.

Still, the Supreme Court never held—because it had no

need to—that military commissions are barred from trying

crimes recognized only by domestic law. Instead, it left that

question for another day. That day looked like it would come

in 2006 when the Court took up the case of Salim Hamdan,

Osama Bin Laden’s personal driver, who was convicted of,

among other things, conspiring to commit acts of terrorism.

Like al Bahlul, Hamdan argued that the military commission

that convicted him lacked jurisdiction because conspiracy was

not a violation of the law of war. The Court, however, never

reached that issue because it resolved the case on statutory

grounds, i.e., it held that the commission’s procedures ran

afoul of the Uniform Code of Military Justice. In other words,

the Court ruled that domestic law could limit military

commission jurisdiction, but it had no reason to decide

whether it could extend it.

The government, though agreeing that the Hamdan Court

never directly held that the law of war includes domestic

precedent, nonetheless argues that “seven justices . . . agreed

that resolution of the question did not turn solely on whether

conspiracy was a violation of international law.”

Respondent’s Br. 41. As the government points out, Justice

Thomas, writing on behalf of himself and two other Justices,

did embrace this proposition. See Hamdan, 548 U.S. at 689

(Thomas, J., dissenting) (“The common law of war as it

pertains to offenses triable by military commission is derived

from the experience of our wars and our wartime tribunals,

and the laws and usages of war as understood and practiced

by the civilized nations of the world.”) (citation and internal

6

quotation marks omitted). But Justice Kennedy, writing for

himself and three other Justices, relied on Quirin for the

proposition that the law of war “derives from ‘rules and

precepts of the law of nations’; it is the body of international

law governing armed conflict,” id. at 641 (Kennedy, J.,

concurring) (quoting Quirin, 317 U.S. at 28) (emphases

added)—a definition that rules out resort to domestic law.

To be sure, Justice Stevens observed that “[t]he crime of

‘conspiracy’ has rarely if ever been tried as such in this

country by any law-of-war military commission.” Id. at 603

(Stevens, J., plurality opinion). The government, however,

reads far too much into this reference to domestic practice, for

in the very same sentence Justice Stevens emphasized that

“international sources”—the Geneva Conventions and the

Hague Conventions, which he described as “the major treaties

on the law of war”—“confirm” that conspiracy “is not a

recognized violation of the law of war.” Id. at 610 (emphasis

added). Justice Stevens described Quirin in similar terms:

sabotage was triable by military commission in that case

because it “was, by universal agreement and practice both in

this country and internationally, recognized as an offense

against the law of war.” Id. at 603 (quoting Quirin, 317 U.S.

at 30) (emphasis added) (internal quotation marks omitted).

By stating that international law “confirms” that conspiracy is

not a violation of the law of war, and by describing the Quirin

sabotage as a violation of the law of war because it was

treated as such “both in this country and internationally,”

Justice Stevens was saying that, at a minimum, an act must

violate the international law of war before Congress can grant

military commissions jurisdiction over that crime. In other

words, Justice Stevens did not conclude that domestic law

alone could support military-commission jurisdiction over

conspiracy. This interpretation of Justice Stevens’s opinion

seems especially obvious given that the three Justices who

7

signed onto his opinion also joined Justice Kennedy’s

statement that the law of war “is . . . international law,” id. at

641 (Kennedy, J., concurring), and not Justice Thomas’s

opinion to the contrary.

Thus, although the Court held in Hamdan that domestic

law—namely, the UCMJ—can limit the scope of military-

commission jurisdiction, only three Justices would have

extended that jurisdiction beyond the international law of war

to the “American common law of war.” Given this, and given

that Article III courts are the default, that exceptions must be

“delineated in [the Court’s] precedents,” Northern Pipeline,

458 U.S. at 74, and that the Schor balancing factors favor al

Bahlul, see Op. at 33–36, this “inferior” court is without

authority to go beyond the Supreme Court’s clear signal, sent

first in Quirin and repeated in Yamashita, that military-

commission jurisdiction is limited to crimes that violate the

international law of war. See United States v. Dorcely, 454

F.3d 366, 375 (D.C. Cir. 2006) (the Supreme Court’s

“carefully considered language . . . must be treated as

authoritative”). Instead, we must leave it to the Supreme

Court to take that step.

Moreover, and again proceeding on de novo review, I see

nothing in Article I of the Constitution that requires a

different result. Judge Rogers demonstrates this convincingly.

See Op. at 19–26. I add only that were the government correct

about Article I, Congress would have virtually unlimited

authority to bring any crime within the jurisdiction of military

commissions—even theft or murder—so long as it related in

some way to an ongoing war or the armed forces. Congress

could simply declare any crime to be a violation of the law of

war and then vest military commissions with jurisdiction to

try it, thereby gutting Article III’s critical protections. The

Supreme Court rejected that view of Article I in Northern

8

Pipeline. There, the Court concluded that Congress had no

authority to establish bankruptcy courts entirely outside of

Article III’s reach because any limit on such “broad

legislative discretion” would prove “wholly illusory.”

Northern Pipeline, 458 U.S. at 73–74. Like the bankruptcy

scheme the Court rejected in Northern Pipeline, the

government’s view of Article I would “effectively eviscerate

[Article III’s] guarantee of an independent Judicial Branch of

the Federal Government.” Id. at 74.

Although the foregoing is sufficient to resolve this case,

the government makes one more argument that deserves

attention. Limiting commission jurisdiction to offenses that

violate international law, it asserts, “would . . . inappropriately

restrict Congress’s ability, in the absence of broad

concurrence by the international community, to adapt . . . [to]

future changes in the practice of modern warfare and the

norms that govern it.” Respondent’s Br. 38; see also

Dissenting Op. at 30–31. I agree with the government’s

premise: that as a result of today’s decision, Congress will be

unable to vest military commissions with jurisdiction over

crimes that do not violate the international law of war. But as

explained above, that is precisely what the Constitution, as

interpreted by the Supreme Court, requires.

Despite the government’s protestations, moreover, this

court’s holding will not “inappropriately restrict” the nation’s

ability to ensure that those who conspire to commit terrorism

are appropriately punished. After all, the government can

always fall back on the apparatus it has used to try federal

crimes for more than two centuries: the federal courts. See 18

U.S.C. § 371 (criminalizing conspiracy). Federal courts hand

down thousands of conspiracy convictions each year, on

everything from gun-running to financial fraud to, most

important here, terrorism. See CENTER ON LAW AND

9

SECURITY, NEW YORK UNIVERSITY SCHOOL OF LAW,

TERRORIST TRIAL REPORT CARD: SEPTEMBER 11, 2001-

SEPTEMBER 11, 2011 at 2, 7, table 1, available at

http://goo.gl/Ks3Okc (since September 11, 2001, prosecutors

have prevailed in almost 200 “jihadist-related” terrorism and

national-security cases in federal courts); id. at 13 (“the most

commonly charged crimes” have included violations of 18

U.S.C. § 371, for “general criminal conspiracy”). For

instance, Zacarias Moussaoui—the potential 20th 9/11

hijacker—pled guilty in federal court to six counts of

conspiracy for his role in planning the 2001 attacks, see

United States v. Moussaoui, 591 F.3d 263, 266 (4th Cir.

2010); a federal jury convicted Wadih el Hage, Mohamed

Odeh, and Mohamed al Owhali for conspiring to bomb the

American embassies in Kenya and Tanzania, see In re

Terrorist Bombings of U.S. Embassies in East Africa, 552

F.3d 93, 107 (2d Cir. 2008); and Ahmed Abu Khattalah, who

stands accused of conspiring to attack the American

diplomatic mission in Benghazi, Libya, awaits trial in this

very courthouse, see Superseding Indictment, United States v.

Ahmed Abu Khattala, No. 14-cr-141 (D.D.C. Oct. 14, 2014),

ECF No. 19.

By contrast, although the detention camp at the U.S.

naval station at Guantánamo Bay has held at least 780

individuals since opening shortly after September 11th, and

although military prosecutors have brought charges against

some two hundred, the commissions have convicted only

eight: al Bahlul, Hamdan, Noor Uthman Muhammed,

David Hicks, Omar Khadr, Majid Khan, Ibrahim al Qosi, and

Ahmed al Darbi. See MIAMI HERALD, Guantánamo: By the

Numbers, http://goo.gl/SEPfV6 (last updated May 12, 2015).

Furthermore, due to various questions about the military-

commission process itself, as of this writing only three of

10

those convictions—Khan’s, al Darbi’s, and al Qosi’s—remain

on the books and unchallenged.

1

KAREN LECRAFT HENDERSON , Circuit Judge, dissenting:

In 1952, the Honorable Robert H. Jackson—Associate Justice

of the United States Supreme Court and former chief

prosecutor at Nuremberg—set out what has become the

“accepted framework” for our constitutional jurisprudence in

the areas of national security and military affairs. Medellín v.

Texas, 552 U.S. 491, 524 (2008). Justice Jackson famously

identified three categories of governmental action.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–

38 (1952) (Jackson, J., concurring). When the President and

the Congress disagree (Category 3), their powers are

subtractive. Id. at 637–38. When the President and the

Congress act in concert (Category 1), however, their powers

are additive: “the United States is invested with all the

attributes of sovereignty” and the courts “should hesitate long

before limiting or embarrassing such powers.” Id. at 635–37

& n.2 (quoting Mackenzie v. Hare, 239 U.S. 299, 311 (1915))

(emphasis omitted).

Yet, according to my colleagues, Justice Jackson didn’t

get the math quite right. He apparently failed to factor in an

additional constraint on the political branches’ combined war

powers: international law. My colleagues contend—as a

matter of constitutional law, not simple comity—that the

Congress cannot authorize military-commission trials unless

the international community agrees, jot and tittle, that the

offense in question violates the law of war. And the content

of international law is to be determined by—who else?—the

Judiciary, with little or no deference to the political branches.

Contra Rostker v. Goldberg, 453 U.S. 57, 65–66 (1981)

(“perhaps in no other area has the Court accorded Congress

greater deference” than “in the context of Congress’ authority

over national defense and military affairs”). But the

definition and applicability of international law is, in large

part, a political determination, see Finzer v. Barry, 798 F.2d

2

1450, 1459–60 (D.C. Cir. 1986), aff’d in part, rev’d in part

sub nom. Boos v. Barry, 485 U.S. 312 (1988), and the

decision to try an alien enemy combatant by military

commission is part and parcel of waging war, see Application

of Yamashita, 327 U.S. 1, 11–12 (1946). The majority

opinion thereby draws us into a thicket, one in which our

“lack of competence . . . is marked,” Rostker, 453 U.S. at 65,

our democratic unaccountability glaring, Gilligan v. Morgan,

413 U.S. 1, 10 (1973), and the ramifications of our actions

unpredictable, Holder v. Humanitarian Law Project, 561 U.S.

1, 34 (2010) (“most federal judges” do not “begin the day

with briefings that may describe new and serious threats to

our Nation and its people”).

The immediate consequences of today’s decision are

serious enough: my colleagues bar the Government from

employing military commissions to try individuals who

conspire to commit war crimes against the United States. But

the consequences moving forward may prove more alarming

still. My colleagues’ opinion means that, in future conflicts,

the Government cannot use military commissions to try

enemy combatants for any law-of-war offense the

international community has not element-by-element

condoned. Their timing could not be worse. See Letter from

the President to the Congress of the United States –

Authorization for the Use of United States Armed Forces in

Connection with the Islamic State of Iraq and the Levant

(Feb. 11, 2015). And the beneficiary of today’s decision

could not be less deserving. Ali Hamza Ahmad Suliman al

Bahlul (Bahlul) “is an alien unlawful enemy combatant

who—like Hitler’s Goebbels—led Osama bin Laden’s

propaganda operation.” Bahlul v. United States, 767 F.3d 1,

33–34 (D.C. Cir. 2014) (en banc) (Henderson, J., concurring).

He “freely admitted”—indeed, bragged about—his role in the

attacks of September 11, 2001. Id. at 34. During his military-

3

commission trial, he never raised any of the arguments we

today consider. The en banc court deemed his Ex Post Facto

challenge forfeited and reviewed it for plain error only. Id. at

9–11. We should have taken the same approach here, rather

than declaring unconstitutional a provision of the Military

Commissions Act of 2006 (2006 MCA), Pub. L. No. 109-366,

120 Stat. 2600.

Accordingly, I must dissent.

I. Standard of Review ................................................................3

II. The Constitutional Challenges ...........................................29

A. Article I .........................................................................30

1. Define and Punish Clause.......................................32

2. Necessary and Proper Clause .................................48

3. Broader War Powers ...............................................53

a. Supreme Court Precedent .................................55

b. Winthrop’s Treatise ..........................................59

c. Historical Practice .............................................62

B. Article III.......................................................................68

1. Judicial Power Clause .............................................68

2. Criminal Jury Clause ..............................................80

C. Equal Protection & First Amendment .........................85

I. STANDARD OF REVIEW

Beyond its troubling ramifications, one of the real

tragedies of today’s decision is just how unnecessary it is.

Rather than reaching the merits, this case should begin and

end with the “measuring stick” of appellate decisionmaking:

the standard of review. John C. Godbold, Twenty Pages and

Twenty Minutes: Effective Advocacy on Appeal, 30 SW. L.J.

801, 810 (1976). The measuring stick we should use to

review Bahlul’s arguments is plain error.

4

Bahlul is an “alien unlawful enemy combatant” (enemy

combatant) subject to trial by military commission under the

2006 MCA. 10 U.S.C. § 948c (2006). He contends that his

conviction of conspiracy to commit war crimes, 10 U.S.C.

§ 950v(28) (2006) (the challenged provision), violates the

Define and Punish Clause of Article I, the Judicial Power and

Criminal Jury Clauses of Article III, the equal protection

component of the Fifth Amendment Due Process Clause and

the First Amendment. Had Bahlul properly preserved these

questions of law, we would review them de novo. See United

States v. Popa, 187 F.3d 672, 674 (D.C. Cir. 1999). But he

failed to do so.

During the military-commission proceedings, as the en

banc court determined, Bahlul “waived all pretrial motions,

asked no questions during voir dire, made no objections to

prosecution evidence, presented no defense and declined to

make opening and closing arguments.” Bahlul, 767 F.3d at 7.

He “flatly refused to participate” and “instructed his trial

counsel not to present a substantive defense.” Id. at 10.

When Bahlul did make objections, they were “couched

entirely in political and religious terms.” Id. He began by

accusing the United States of being “an enemy [of] the Nation

of Muslims” that supports “the great injustice that is carried

out by . . . the Jews on the Muslims in Palestine.” Appendix

(App.) 112. He concluded by disclaiming concern with the

proceedings because they were based on earthly law, not

Allah’s dictates. App. 116. Although he made stray

references to “discrimination” and the “illegal” nature of his

trial, App. 114–15, his remarks were “unquestionably ‘too

general to have alerted the trial court to the substance of his

point.’ ” Bahlul, 767 F.3d at 10 (quoting, inter alia, United

States v. Bolla, 346 F.3d 1148, 1152 (D.C. Cir. 2003)

(alteration omitted)). Bahlul therefore forfeited every

5

substantive challenge to his conviction. See Puckett v. United

States, 556 U.S. 129, 134 (2009).

In other words, Bahlul violated the contemporaneous-

objection rule. That rule requires a party to, in a phrase,

“speak now or forever hold your peace”: if he fails to raise an

argument in the trial court, he cannot raise it later on appeal.

See id. at 135; Miller v. Avirom, 384 F.2d 319, 321–22 (D.C.

Cir. 1967). The contemporaneous-objection rule serves at

least two purposes. First, it encourages fairness by penalizing

sandbagging—i.e., “the intentional withholding of an

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

trial.” Bahlul, 767 F.3d at 9 (citing, inter alia, Wainwright v.

Sykes, 433 U.S. 72, 89 (1977)). Second, the rule promotes

judicial efficiency by giving the trial court the first

opportunity to correct errors, Puckett, 556 U.S. at 134, and by

ensuring that “litigation remains, to the extent possible, an

orderly . . . winnowing process,” Exxon Shipping Co. v.

Baker, 554 U.S. 471, 487 n.6 (2008) (quotation marks

omitted). See also Wainwright, 433 U.S. at 90

(contemporaneous-objection rule makes trial “main event”

rather than mere “tryout on the road”).

The rule operates differently in civil and criminal cases.

See Salazar ex rel. Salazar v. Dist. of Columbia, 602 F.3d

431, 437 (D.C. Cir. 2010). In civil cases, forfeiture is usually

the end of the matter; the appellate court does not review the

tardy argument at all, unless it excuses the forfeiture due to

“exceptional circumstances.” Dist. of Columbia v. Air Fla.,

Inc., 750 F.2d 1077, 1085 (D.C. Cir. 1984). In criminal

cases—including these unique enemy combatant cases—

forfeiture triggers plain-error review. Bahlul, 767 F.3d at 9

(citing, inter alia, FED. R. CRIM. P. 52(b); 10 U.S.C.

§ 950a(a)). The appellate court automatically excuses the

defendant’s forfeiture but reviews his argument under a more

6

exacting standard. See United States v. Olano, 507 U.S. 725,

732 (1993) (“[t]he appellate court must consider the error”

but it “may correct the error . . . only if” it is plain (first

emphasis added)). In this way, the plain-error standard

“tempers the blow” of the contemporaneous-objection rule for

a criminal defendant. United States v. Young, 470 U.S. 1, 15

(1985). But it also “reflects a careful balancing of our need to

encourage all trial participants to seek a fair and accurate trial

the first time around against our insistence that obvious

injustice be promptly redressed.” United States v. Frady, 456

U.S. 152, 163 (1982).

The plain-error standard applies to “all” forfeited

arguments in a criminal case. Puckett, 556 U.S. at 136;

accord United States v. Delgado, 672 F.3d 320, 331 (5th Cir.

2012) (“[W]e do not read [the Supreme Court’s cases] as

allowing for any exceptions to the application of the plain-

error test for forfeited claims.”). 1 There is only one type of

argument that is nonforfeitable and therefore exempt from

plain-error review: subject-matter jurisdiction. See United

States v. Cotton, 535 U.S. 625, 631 (2002); United States v.

David, 96 F.3d 1477, 1482 (D.C. Cir. 1996); accord United

States v. Washington, 653 F.3d 1251, 1257–58 (10th Cir.

2011) (“if a court ordinarily would consider an argument . . .

1

Most of Bahlul’s arguments involve personal constitutional rights that

are indisputably forfeitable. See Peretz v. United States, 501 U.S. 923,

936 (1991) (“[t]he most basic rights of criminal defendants” can be

forfeited); Yakus v. United States, 321 U.S. 414, 444 (1944) (“No

procedural principle is more familiar to this Court than that a

constitutional right may be forfeited . . . .”); see also, e.g., Johnson v.

United States, 520 U.S. 461, 466 (1997) (right to petit jury); United States

v. Broxton, 926 F.2d 1180, 1183 (D.C. Cir. 1991) (equal protection);

United States v. Accardi, 669 F.3d 340, 343–44 (D.C. Cir. 2012) (First

Amendment).

7

to be forfeited, it should only refrain from doing so . . . when

the alleged error is jurisdictional”). 2 Subject-matter

jurisdiction “can never be forfeited” because “it involves a

court’s power to hear a case.” Cotton, 535 U.S. at 630

(emphasis added); see also United States v. Baucum, 80 F.3d

539, 540 (D.C. Cir. 1996).

Bahlul cannot seriously contest the military

commission’s jurisdiction. The 2006 MCA authorizes trial by

military commission of “any offense made punishable by this

chapter,” including “conspiracy.” 10 U.S.C. §§ 948d(a),

950v(b)(28) (2006). It “explicitly confers jurisdiction on

military commissions to try [Bahlul on] the charged

offenses.” Bahlul, 767 F.3d at 10 n.6. Granted, Bahlul

challenges this jurisdictional grant as beyond the Congress’s

authority under the Define and Punish Clause. A challenge to

the constitutionality of a jurisdictional statute, however, is not

itself jurisdictional. See United States v. Williams, 341 U.S.

58, 66 (1951) (“Even the unconstitutionality of the statute

2

Nguyen v. United States, 539 U.S. 69 (2003), and Glidden Co. v.

Zdanok, 370 U.S. 530 (1962) (plurality), are not to the contrary. In both

cases, the criminal defendants complained that a non–Article III judge sat

by designation on the court that reviewed or issued their respective

convictions. Nguyen, 539 U.S. at 72 (chief judge of District Court for

Northern Mariana Islands); Glidden, 370 U.S. at 532 (retired judge of

Court of Customs and Patent Appeals). Although the defendants failed to

timely raise their objections, the Supreme Court nevertheless declined to

apply the plain-error standard. Nguyen, 539 U.S. at 80–81; Glidden, 370

U.S. at 535–36. Both Nguyen and Glidden, however, fit comfortably

within the “jurisdictional” exception to plain-error review. In Glidden, the

plurality declared that it was “treat[ing] the alleged defect as

‘jurisdictional.’ ” 370 U.S. at 536. And in Nguyen, the Court repeatedly

described the alleged error as a challenge to the court’s “authority.” 539

U.S. at 79–80; see also Rivera v. Illinois, 556 U.S. 148, 161 (2009)

(unanimous) (describing Nguyen as case where court of appeals “lacked

statutory authority to adjudicate the controversy” (emphasis added)).

8

under which the proceeding is brought does not oust a court

of jurisdiction.”); United States v. Drew, 200 F.3d 871, 876

(D.C. Cir. 2000) (noting “the error in labeling a challenge to

the constitutionality of a statute a jurisdictional issue”);

Cotton, 535 U.S. at 630 (same); Baucum, 80 F.3d at 540–41

(because every federal statute enjoys “a presumption of

validity,” the “assertion of a constitutional defect does not

work to divest th[e] court of its original jurisdiction”).

Bahlul’s Article I Define and Punish Clause argument is no

more jurisdictional than his Article I Ex Post Facto Clause

argument, which the en banc court reviewed for plain error.

See Bahlul, 767 F.3d at 10 n.6 (“The question whether [the

2006 MCA] is unconstitutional does not involve the court[’s]

statutory or constitutional power to adjudicate the case.”

(quotation marks omitted)); see also, e.g., United States v.

Nueci-Peña, 711 F.3d 191, 197 (1st Cir. 2013) (reviewing

Define and Punish Clause challenge for plain error); United

States v. Urena, 140 F. App’x 879, 881 (11th Cir. 2005)

(same).

Bahlul’s challenge under the Judicial Power Clause of

Article III is also forfeitable. Like his Define and Punish

Clause argument, his Judicial Power Clause challenge is to

the constitutionality of a jurisdictional statute, a challenge that

is itself, to repeat, plainly nonjurisdictional. See Williams,

341 U.S. at 66; Bahlul, 767 F.3d at 10 n.6; Baucum, 80 F.3d

at 540–41. The “Article III” label changes nothing; by this

Clause, Article III restricts the Congress’s power, not the

power of the courts or military commissions. See CFTC v.

Schor, 478 U.S. 833, 850 (1986) (“Article III, § 1 . . . bar[s]

congressional attempts to transfer jurisdiction to non-Article

III tribunals” (emphasis added) (quotation marks and

alterations omitted)). If a Judicial Power Clause challenge

were in fact jurisdictional, a court would be required to raise it

sua sponte each time it reviews a decision of a non–Article III

9

tribunal (e.g., agency adjudicator, magistrate judge,

bankruptcy court). See Baucum, 80 F.3d at 541. Courts, of

course, do not do this because they “would have to assure

themselves of a statute’s validity as a threshold matter,”

“run[ning] afoul of established Supreme Court precedent

declining to address constitutional questions not put in issue

by the parties.” Id.; see also, e.g., Granfinanciera, S.A. v.

Nordberg, 492 U.S. 33, 64 n.19 (1989) (declining to reach

Article III issue because “however helpful it might be for us

to adjudge every . . . constitutional issue presented by [a

statute], we cannot properly reach out and decide matters not

before us”); United States v. Spector, 343 U.S. 169, 172

(1952) (declining to consider sua sponte Article III Judicial

Power Clause issue); Benjamin v. Jacobson, 172 F.3d 144,

163 n.** (2d Cir. 1999) (en banc) (same); In re Constr.

Equip. Co., 665 F.3d 1254, 1256 n.3 (Fed. Cir. 2011) (same).

Why, then, do my colleagues review Bahlul’s Article III

challenge de novo? As best I can tell, their answer is

“because Schor says so.” See Maj. Op. 3–9; Concur. Op. 2. I

respectfully disagree. Here is the relevant passage from

Schor:

[O]ur precedents establish that Article III, § 1, not

only preserves to litigants their interest in an

impartial and independent federal adjudication of

claims within the judicial power of the United States,

but also serves as an inseparable element of the

constitutional system of checks and balances.

Article III, § 1 safeguards the role of the Judicial

Branch in our tripartite system by barring

congressional attempts to transfer jurisdiction to non-

Article III tribunals for the purpose of emasculating

constitutional courts, and thereby preventing the

encroachment or aggrandizement of one branch at

10

the expense of the other. To the extent that this

structural principle is implicated in a given case, the

parties cannot by consent cure the constitutional

difficulty for the same reason that the parties by

consent cannot confer on federal courts subject-

matter jurisdiction beyond the limitations imposed

by Article III, § 2. When these Article III limitations

are at issue, notions of consent and waiver cannot be

dispositive because the limitations serve institutional

interests that the parties cannot be expected to

protect.

478 U.S. at 850–51 (emphases added) (quotation marks,

citations and alterations omitted). But the High Court did not,

by this language, instruct courts to treat Judicial Power Clause

challenges as nonforfeitable or to automatically review them

de novo.3

3

My colleagues note that the Government “conceded” their reading of

Schor is correct. Maj. Op. 6. I do not take them to be saying, however,

that the Government waived its plain-error argument. On the contrary, the

Government “argued for plain-error review before the [United States

Court of Military Commission Review (CMCR)], in its original brief to a

panel of this Court and in its brief to the en banc court.” Bahlul, 767 F.3d

at 10 n.5. The Government again asked us to review Bahlul’s Article III

challenge for plain error. See Resp’t’s Br. 49–52, 60. And, even at oral

argument, the Government objected to the notion that Bahlul was raising a

nonforfeitable structural challenge—hardly a concession of the point. See

Oral Arg. Recording 30:47 (“I do not acknowledge that he [Bahlul] was

raising it [the structural Article III argument].”).

In any event, to the extent the Government misinterprets Schor, I

would decline to accept its interpretation. See Young v. United States, 315

U.S. 257, 259 (1942) (“The proper administration of the criminal law

cannot be left merely to the stipulation of parties.”). The Government

cannot alter our standard of review—by concession, inadvertence, poor

oral advocacy or otherwise. See United States v. Delgado-Garcia, 374

11

Put simply, Schor is not a case about forfeitability at all.

As already discussed, the only nonforfeitable argument is

subject-matter jurisdiction. See Cotton, 535 U.S. at 631;

David, 96 F.3d at 1482; accord Freytag v. Comm’r, 501 U.S.

868, 893–94 (1991) (Scalia, J., concurring) (“A party forfeits

the right to advance on appeal a nonjurisdictional claim,

structural or otherwise, that he fails to raise at trial.”

(emphasis added)). Schor did not hold that a Judicial Power

Clause challenge is “jurisdictional.” Granted, the Court said

that “parties cannot by consent cure the constitutional

difficulty for the same reason that the parties by consent

cannot confer on federal courts subject-matter jurisdiction.”

Schor, 478 U.S. at 851 (emphasis added). In a later case, four

Justices speculated that Schor drew an “analogy” between the

Judicial Power Clause and subject-matter jurisdiction.

Freytag, 501 U.S. at 897 (Scalia, J., concurring). But an

issue’s analogy to subject-matter jurisdiction does not make it

jurisdictional; in fact, the very need for analogy suggests that

the concepts are different. See William Fleming, Vocabulary

of Philosophy, in A VOCABULARY OF THE PHILOSOPHICAL

SCIENCES 21 (1878) (“Analogy implies a difference in sort,

and not merely in degree . . . .”); see also NFIB v. Sebelius,

132 S. Ct. 2566, 2656 n.6 (2012) (Scalia, Kennedy, Thomas,

Alito, JJ., dissenting) (“That the penalty is to be ‘assessed and

collected in the same manner as taxes’ refutes the proposition

that it is a tax . . . .” (emphases in original)). And the analogy

is a poor one at that. Because there is nothing jurisdictional

F.3d 1337, 1341 (D.C. Cir. 2004) (declining to accept Government’s

concession that issue was jurisdictional and thus subject to de novo

review); Nueci-Pena, 711 F.3d at 196 n.5 (declining to accept

Government’s concession that constitutional challenge should be reviewed

de novo, rather than for plain error); United States v. Vontsteen, 950 F.2d

1086, 1091 (5th Cir. 1992) (“[N]o party has the power to control our

standard of review.” (emphasis in original)).

12

about a challenge to the Congress’s constitutional authority to

enact a statute, see Williams, 341 U.S. at 66; Bahlul, 767 F.3d

at 10 n.6; Baucum, 80 F.3d at 540–41, a one-sentence analogy

is far too slim a reed to conclude that Schor carved out a

“judicial power” exception to the Court’s earlier—and

consistent—precedent on the forfeitability of constitutional

arguments. See, e.g., Williams, 341 U.S. at 66; Yakus, 321

U.S. at 444. See generally Shalala v. Ill. Council on Long

Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not

normally overturn, or so dramatically limit, earlier authority

sub silentio.”).

But don’t take my word for it. The Supreme Court has

since clarified that Schor did not declare Judicial Power

Clause challenges to be nonforfeitable; instead, the Court in

Schor at most exercised its discretion to excuse the forfeiture.

In Plaut v. Spendthrift Farms, Inc., the Government—like

Bahlul—attempted to rely on Schor for the proposition that

“parties cannot waive the structural principle of Article III.”

Brief for United States at 27, 514 U.S. 211 (1995) (No. 93-

1121), 1994 WL 387806. The Supreme Court expressly

rejected this view:

[T]he proposition that legal defenses based upon

doctrines central to the courts’ structural

independence can never be waived simply does not

accord with our cases. Certainly one such doctrine

consists of the “judicial Power” to disregard an

unconstitutional statute; yet none would suggest that

a litigant may never waive the defense that a statute

is unconstitutional. . . . We held in Schor that,

although a litigant had consented to bring a state-law

counterclaim before an Article I tribunal, we would

nonetheless choose to consider his Article III

challenge, because “when these Article III

13

limitations are at issue, notions of consent and

waiver cannot be dispositive,” id., at 851 (emphasis

added). See also Freytag v. Commissioner, 501 U.S.

868, 878–879 (1991) (finding a “rare cas[e] in which

we should exercise our discretion” to hear a waived

claim based on the Appointments Clause, Art. II, § 2,

cl. 2).

Plaut, 514 U.S. at 231–32 (first emphasis added) (some

citations omitted). Plaut makes plain that a party can forfeit a

Judicial Power Clause argument and there is no “Schor

exception” to the rule that a “structural” constitutional

challenge is forfeitable. Whether an appellate court entertains

such a challenge is a matter of discretion, not an inexorable

command from Schor.4

Granted, in a series of bankruptcy cases, many of our

sister circuits interpreted Schor to create a rule of

nonforfeitability, despite the Supreme Court’s clarification in

Plaut. See Wellness Int’l Network, Ltd. v. Sharif, 727 F.3d

751, 767–73 (7th Cir. 2013), rev’d, No. 13-935, 2015 WL

2456619 (U.S. May 26, 2015); In re BP RE, L.P., 735 F.3d

279, 286–87 (5th Cir. 2013); Waldman v. Stone, 698 F.3d

4

My colleagues also cite Stern v. Marshall, 131 S. Ct. 2594 (2011), to

support their reading of Schor. Maj. Op. 6. But Stern said nothing about

the forfeitability of Judicial Power Clause challenges. In Stern, the

Supreme Court reviewed de novo the respondent’s Judicial Power Clause

challenge to the bankruptcy court’s adjudication of a state-law

counterclaim. See id. at 2608. There is no indication, however, that the

respondent ever forfeited this argument. Although he did forfeit his

challenge to the bankruptcy court’s adjudication of his defamation claim,

id. at 2606, he “did not truly consent to” its adjudication of the petitioner’s

tortious-interference counterclaim, id. at 2614. And, in fact, the

respondent had earlier objected to the bankruptcy court’s jurisdiction of

the counterclaim. See id. at 2601–02.

14

910, 917–18 (6th Cir. 2012). But see In re Bellingham Ins.

Agency, Inc., 702 F.3d 553, 566 (9th Cir. 2012), aff’d on other

grounds sub nom. Exec. Benefits Ins. Agency v. Arkison, 134

S. Ct. 2165 (2014). In Kuretski v. Commissioner, this

Court—relying in part on the bankruptcy cases from our sister

circuits—read Schor to mean that a party “did not (and could

not) . . . waive his ‘structural’ claim” under the Judicial Power

Clause of Article III. 755 F.3d 929, 937 (D.C. Cir. 2014)

(emphasis added); see also id. at 938 (citing Waldman). No

matter the correctness vel non of these cases when they were

decided, their continued validity has been fatally undermined

by two very recent Supreme Court decisions.

In B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct.

1293 (2015), the Supreme Court considered whether the

decisions of the Trademark Trial and Appeal Board—a non–

Article III tribunal—were entitled to issue-preclusive effect.

See id. at 1299, 1303. If issue preclusion applied, the

respondent claimed that the Judicial Power Clause would be

violated. See id. at 1304. The Court expressly declined to

consider the claim because the respondent had not briefed it.

See id.; see also id. at 1305 n.2 (“[W]e do not decide whether

such preclusion is unconstitutional because the issue is not

before us.”); id. at 1304 (“To the extent . . . there could be a

meritorious constitutional objection, it is not before us.”). In

other words, the respondent forfeited the Article III

argument—a holding that plainly contradicts the notion that

Judicial Power Clause challenges are nonforfeitable.

Significantly, the Court relied on Plaut to support its

forfeiture determination. See id. at 1304 (citing Plaut, 514

U.S. at 231–32).

In Wellness International Network, Ltd. v. Sharif, No. 13-

935 (U.S. May 26, 2015), the Supreme Court made its view

on the forfeitability of a Judicial Power Clause challenge as

15

plain as day. The main holding of Sharif is that a party’s

consent eliminates the Article III problem presented by

bankruptcy court adjudication. See No. 13-935, slip op. at 2.

But, near the end of the opinion, the Court also indicated that

Judicial Power Clause challenges are forfeitable. In the

decision under review, the Seventh Circuit had held that the

“structural interests” protected by the Judicial Power Clause

cannot be forfeited. See id. at 7 & n.5 (quoting Sharif, 727

F.3d at 771). The Supreme Court reversed that decision in

toto. See id. at 8, 20. In fact, the Court remanded the case to

the Seventh Circuit with instructions to conduct the

“factbound analysis” necessary to determine “whether . . .

Sharif forfeited his Stern argument below.” Id. at 20. [A

“Stern argument”—it should go without saying, contra Maj.

Op. 7–8—is a “structural” Judicial Power Clause challenge.

See Arkison, 134 S. Ct. at 2170 (“Stern claims” are “claim[s]

designated for final adjudication in the bankruptcy court . . .

but prohibited from proceeding in that way as a constitutional

matter” because “Article III prohibits Congress from vesting a

bankruptcy court with th[at] authority” (emphasis added)).]

One Justice in Sharif went further, concluding that remand

was unnecessary because the Judicial Power Clause challenge

was indisputably forfeited:

[R]espondent forfeited any Stern objection by failing

to present that argument properly in the courts

below. Stern vindicates Article III, but that does not

mean that Stern arguments are exempt from ordinary

principles of appellate procedure.

Id., concurring op. at 2 (Alito, J.). He, unsurprisingly, relied

on B&B Hardware for this conclusion. Id. (citing B&B

Hardware, 135 S. Ct. at 1304). The other five Justices in the

Sharif majority necessarily agreed that “ordinary principles of

appellate procedure” govern, id.: they would not have

16

remanded the forfeiture question if the Seventh Circuit were

right all along that a “structural” Judicial Power Clause

challenge cannot be forfeited. 5 Accordingly, Sharif not only

overruled our sister circuits’ earlier bankruptcy cases, but, in

my reading, it also undermined the relevant language from

Kuretski. Contra Maj. Op. 5.

Notwithstanding the charge that I “misinterpret[]” Sharif,

Maj. Op. 8, it is my colleagues’ reading that misses the mark.

They believe Sharif reinforced Schor’s supposed rule of

nonforfeitability. To support this point, they rely on passages

in Sharif that discuss the distinction between the “personal”

and “structural” aspects of Article III. See Maj. Op. 5, 6, 8

5

My colleagues emphasize that in Sharif the Supreme Court reviewed the

Article III question de novo. Maj. Op. 6, 8. This is true but unhelpful to

them. The Supreme Court granted certiorari in Sharif to determine

whether a party’s consent cures the structural Article III problem posed by

bankruptcy court adjudication—a question that was decided by the

Seventh Circuit and briefed in the Supreme Court. The Court answered

the question in the affirmative. It then remanded to the Seventh Circuit to

determine whether Sharif in fact consented to bankruptcy court

adjudication and—if not—whether Sharif nonetheless forfeited his

Judicial Power Clause challenge by not timely raising it. See No. 13-935,

slip op. at 20; Pet’r’s Wellness Int’l, et al. Br. 47–48, 2014 WL 4467356

(U.S. 2014) (arguing that “litigants may waive or forfeit constitutional

rights that implicate structural concerns”); Pet’r’s Wellness Int’l, et al.

Reply Br. 26, 2014 WL 7272803 (U.S. 2014) (again arguing that “Sharif

forfeited his Stern argument” (quotation marks and brackets omitted)). In

other words, the Supreme Court answered an important question of law de

novo but still allowed for the prospect that Sharif would ultimately lose his

appeal because he forfeited his structural Article III challenge. My

colleagues’ decision to vacate Bahlul’s conviction in fact contradicts,

rather than hews to, this approach. If they wanted to be faithful to Sharif’s

disposition in the criminal context, they could have resolved Bahlul’s

Article III claim de novo under the “error” prong of the plain-error

standard but then affirmed his conviction because the error was not

“plain.” See infra p. 28.

17

(citing Sharif, No. 13-935, slip op. at 9, 11–12, 14 n.10; id.,

dissenting op. at 12 (Roberts, C.J.)). These passages,

however, have nothing to do with appellate procedure; they

instead speak to the merits.

To put it another way, when Sharif speaks of “waiver,” it

means the waiver of rights, not the forfeiture of arguments.

The question the Court addressed in Sharif is whether

“consent” (sometimes referred to, interchangeably, as

“waiver”) can “cure the constitutional difficulty” presented by

non–Article III adjudication. No. 13-935, slip op. at 9, 14

n.10 (quoting Schor, 478 U.S. at 851 (emphasis added)); id,

dissenting op.. at 12 (Roberts, C.J.) (same). The idea is that,

when a party knowingly and voluntarily waives certain

constitutional rights, no constitutional violation occurs in the

first place. See id., slip op. at 14 n.10; see also id., dissenting

op. at 2 (Thomas, J.) (“Although it may not authorize a

constitutional violation, consent may prevent one from

occurring in the first place.”). This is true for “personal”

rights, like the right to a jury, but—as Schor and Sharif make

plain—it is not true for violations of the Article III Judicial

Power Clause. See id., slip op. at 9; Schor, 478 U.S. at 849–

51. A party’s consent cannot, by itself, “excuse an actual

violation of Article III” because the Judicial Power Clause

protects “structural” interests aliunde the narrow concerns of

the parties. Sharif, No. 13-935, slip op. at 14 n.10; see also

Schor, 478 U.S. at 851 (“When these Article III limitations

are at issue, notions of consent and waiver cannot be

dispositive because the limitations serve institutional interests

that the parties cannot be expected to protect.” (emphasis

added)). Sharif, however, clarified that consent can be one

factor that keeps a violation of Article III from occurring, so

long as it is not the only factor. See No. 13-935, slip op. at 14

n.10 (“[C]onsent remains highly relevant when determining

. . . whether a particular adjudication in fact raises

18

constitutional concerns . . . . [C]onsent shows, in part, why no

[structural] violation has occurred.” (citation omitted)). This

is an important holding: it clarifies the role of consent in the

application of the Schor balancing test. Yet it says nothing

about forfeiture, appellate procedure, preservation of

arguments, standards of review or the like. It pertains only to

the merits, i.e. the question whether Article III is in fact

violated. 6

The Supreme Court eloquently explained the waiver-of-

rights/forfeiture-of-arguments distinction in Puckett:

[The defendant’s] argument confuses the concepts of

waiver and forfeiture. Nobody contends that [the

defendant’s] counsel has waived—that is,

intentionally relinquished or abandoned—[the

defendant’s] right . . . . The objection is rather that

[the defendant] forfeited the claim of error through

his counsel’s failure to raise the argument in the

District Court. This Court’s precedents requiring

that certain waivers be personal, knowing, and

voluntary are thus simply irrelevant. Those holdings

6

Even if my colleagues were correct that Sharif’s discussion of “waiver”

refers to forfeiture, they could not reconcile the Court’s repeated

admonitions that structural Article III challenges can, in fact, be waived.

See, e.g., Sharif, No. 13-935, slip op. at 16–17 n.11 (“[T]he proposition

that legal defenses based upon doctrines central to the courts’ structural

independence can never be waived simply does not accord with our

cases.” (quoting Plaut, 514 U.S. at 231 (emphasis added) (alteration in

original))); id. at 12–13 (“[A]llowing bankruptcy litigants to waive the

right to Article III adjudication of Stern claims does not usurp the

constitutional prerogatives of Article III courts.” (emphasis added)); id. at

17 (distinguishing Stern—a structural Article III precedent—on basis that

“[t]he Court has never . . . h[e]ld that a litigant who has the right to an

Article III court may not waive that right through his consent.”).

19

determine whether error occurred, but say nothing

about the proper standard of review when the claim

of error is not preserved.

556 U.S. at 138 (citation omitted) (second emphasis added).

The Court’s analysis makes plain an obvious point when

applied here. An enemy combatant must knowingly and

voluntarily consent to non–Article III adjudication before his

consent can ward off a violation of the Judicial Power Clause.

See Sharif, No. 13-935, slip op. at 18–19. But we should not

even review a Judicial Power Clause challenge if he forfeits

the argument by failing to timely raise it.

To summarize, the Supreme Court has made triply clear

in Plaut, B&B Hardware and Sharif that Schor did not label

an Article III challenge as nonforfeitable; instead, the Schor

Court exercised its discretion to excuse a forfeiture of the

Judicial Power Clause challenge. This distinction—between

nonforfeitability, on the one hand, and discretion to excuse

forfeiture, on the other—is crucial for two reasons.

First, in a criminal case like this one, an appellate court

lacks the kind of discretion the Court exercised in Schor. As

noted, appellate courts in civil cases can excuse a forfeiture in

“exceptional circumstances.” Air Fla., 750 F.2d at 1085. The

Supreme Court has expressly declined to limit this discretion.

See Exxon Shipping, 554 U.S. at 487. Accordingly, courts

occasionally exercise their discretion in civil cases to review

“structural” separation-of-powers challenges de novo,

notwithstanding they were not raised below. See, e.g.,

Freytag, 501 U.S. at 879; Schor, 478 U.S. at 851; Glidden,

370 U.S. at 536–37 (plurality); Kuretski, 755 F.3d at 936–37.

But see Freytag, 501 U.S. at 892–901 (Scalia, J., concurring)

(explaining why “structural” constitutional challenges should

not receive special treatment).

20

The rules are different, however, in criminal cases. Over

the last three decades, the Supreme Court has repeatedly

restricted our authority to deviate from the plain-error

standard. See, e.g., United States v. Marcus, 560 U.S. 258,

262–66 (2010); Puckett, 556 U.S. at 134–43; Cotton, 535 U.S.

at 629–34; Johnson, 520 U.S. at 466–70; Olano, 507 U.S. at

731–41; Young, 470 U.S. at 14–16 & nn.12, 14; Frady, 456

U.S. at 163 & nn.13–14. In criminal cases, the plain-error

standard operates as a “limitation on appellate-court

authority.” Puckett, 556 U.S. at 134; see also United States v.

Farrell, 672 F.3d 27, 36 (1st Cir. 2012). It “strictly

circumscribe[s]” our ability to remedy forfeited errors,

Puckett, 556 U.S. at 134; we “must” review them for plain

error only. Marcus, 560 U.S. at 266; United States v. Brown,

508 F.3d 1066, 1076 (D.C. Cir. 2007). The plain-error

standard strikes a “careful balance” between furthering the

purposes of the contemporaneous-objection rule and

remedying obvious injustice. Puckett, 556 U.S. at 135; see

also Johnson, 520 U.S. at 466; Young, 470 U.S. at 15. “Any

unwarranted extension” of the standard “skew[s]” this

balance, Young, 470 U.S. at 15, and “the creation of an

unjustified exception”—like the one Bahlul requests—is

“even less appropriate.” Puckett, 556 U.S. at 136 (alteration

omitted); see also Young, 470 U.S. at 16 n.14 (criticizing

practice of creating “per se” exceptions to plain-error review).

Courts apply plain-error review in criminal cases

notwithstanding “the seriousness of the error claimed.”

Johnson, 520 U.S. at 466; accord United States v. Padilla,

415 F.3d 211, 220 (1st Cir. 2005) (en banc) (“forfeited errors,

even if structural, are subject to [plain-error review]”).

Notably, when the Supreme Court was presented with a

“structural” Article III challenge in a criminal case, four

Justices thought it should be reviewed for plain error—Schor

notwithstanding. See Nguyen, 539 U.S. at 88 (Rehnquist,

21

C.J., dissenting). 7 Likewise, our sister circuits frequently

review Judicial Power Clause challenges in criminal cases for

plain error only. See, e.g., United States v. Shultz, 733 F.3d

616, 621 (6th Cir. 2013); United States v. Woodard, 387 F.3d

1329, 1331, 1333 (11th Cir. 2004); United States v. Bishop,

603 F.3d 279, 280 (5th Cir. 2010); United States v. Tejeda,

476 F.3d 471, 474 (7th Cir. 2007); United States v. Torres,

258 F.3d 791, 794 (8th Cir. 2001); United States v. Mike, 632

F.3d 686, 691–92, 700 (10th Cir. 2011); United States v.

Nash, 438 F.3d 1302, 1304 (11th Cir. 2006); United States v.

Daniels, 182 F.3d 910 (4th Cir. 1999) (table).

The distinction between criminal and civil cases may

seem counterintuitive because, ordinarily, the plain-error

standard places a criminal defendant in a better position than

a civil litigant. See Bahlul, 767 F.3d at 9 (plain-error review

“mitigate[s] the sometimes harsh results of the forfeiture rule

in criminal cases”). But this intuition focuses myopically on

one side of the plain-error “balance” to the exclusion of the

other. Puckett, 556 U.S. at 135. Plain-error review gives the

contemporaneous-objection rule its “necessary bite.” Daniel

J. Meltzer, State Court Forfeitures of Federal Rights, 99

HARV. L. REV. 1128, 1135 (1986); see also id. (“A

requirement that a particular issue be raised in a particular

fashion or at a particular time would hardly be effective if

failures to comply were never punished.”). As the Supreme

Court has cautioned, “a reflexive inclination by appellate

courts to reverse because of unpreserved error would be fatal”

to the rationale of the contemporaneous-objection rule.

Puckett, 556 U.S. at 134 (emphasis added). That rationale is

“especially compelling” in criminal cases. Cobbledick v.

7

The majority in Nguyen did not reach the Article III question because it

decided the case on an alternate statutory ground. See 539 U.S. at 81.

22

United States, 309 U.S. 323, 325 (1940); see also Di Bella v.

United States, 369 U.S. 121, 124 (1962) (“undue litigiousness

and leaden-footed administration of justice [are] particularly

damaging to the conduct of criminal cases”). Society has an

especially strong interest in the finality of criminal

proceedings because “[w]ithout [it], the criminal law is

deprived of much of its deterrent effect.” Teague v. Lane, 489

U.S. 288, 309 (1989); see also id. (“No one, not criminal

defendants, not the judicial system, not society as a whole is

benefited by a judgment providing that a man shall tentatively

go to jail today, but tomorrow and every day thereafter his

continued incarceration shall be subject to fresh litigation.”);

Young, 470 U.S. at 16 (“To turn a criminal trial into a quest

for error no more promotes the ends of justice than to

acquiesce in low standards of criminal prosecution.”). In

short, plain-error review reconciles multiple competing

concerns in criminal cases and provides a rule to

accommodate them ex ante. Absent jurisdictional error, we

cannot do otherwise than apply this venerable standard. 8

8

None of this analysis—contrary to my colleagues’ contention, Maj. Op.

9—turns on the applicability of FED. R. CRIM. P. 52(b). The en banc court

imported the plain-error standard into enemy combatant cases “whether or

not Rule 52(b) directly governs.” Bahlul, 767 F.3d at 9 n.4 (citing

Salazar, 602 F.3d at 437). The plain-error standard strikes a delicate

“balance” that is irrevocably “skew[ed]” whenever courts exempt litigants

from its requirements. Salazar, 602 F.3d at 440. The Supreme Court’s

decisions to this effect bind us no matter the doctrinal source of the plain-

error standard. See Olano, 507 U.S. at 731 (noting that Rule 52(b) is

merely “a restatement of existing law” (quoting FED. R. CRIM. P. 52(b),

advisory committee’s note (1944))).

To the extent it makes a difference, the plain-error standard does

have a statutory basis in enemy combatant cases. The 2009 MCA

provides that “[a] finding or sentence of a military commission . . . may

not be held incorrect on the ground of an error of law unless the error

23

materially prejudices the substantial rights of the accused.” 10 U.S.C.

§ 950a(a). The Congress took this language from the review provision in

the Uniform Code of Military Justice (UCMJ). See id. § 859(a); see also

id. § 948b(c) (“[t]he procedures for military commissions . . . are based

upon the procedures for trial by general courts-martial under . . . the

[UCMJ]”). The U.S. Court of Appeals for the Armed Forces (CAAF) has

long read the UCMJ’s review provision to incorporate a plain-error

standard that is identical, in all material respects, to Rule 52(b). See

United States v. Tunstall, 72 M.J. 191, 197 n.7 (C.A.A.F. 2013); see also

id. at 196 (“To establish plain error, an appellant has the burden to

demonstrate: (1) there was error; (2) the error was plain or obvious; and

(3) the error materially prejudiced a substantial right of the accused.”).

Given the CAAF’s interpretive gloss on the UCMJ and the Congress’s use

of identical language in the 2009 MCA, the plain-error standard applies

with the same statutory force here. See 10 U.S.C. § 948b(c) (“judicial

construction and application” of UCMJ is “instructive” in interpreting

2009 MCA); Sekhar v. United States, 133 S. Ct. 2720, 2724 (2013) (“[I]f a

word is obviously transplanted from another legal source, whether the

common law or other legislation, it brings the old soil with it.”); Bragdon

v. Abbott, 524 U.S. 624, 645 (1998) (“When administrative and judicial

interpretations have settled the meaning of an existing statutory provision,

repetition of the same language in a new statute indicates, as a general

matter, the intent to incorporate its administrative and judicial

interpretations as well.”). The sources cited by my colleagues, Maj. Op. 9,

are inapposite because they deal with review by the Service Courts of

Criminal Appeals (CCAs) and CMCR, rather than the “much more

limited” review of the CAAF and this Court. United States v. Claxton, 32

M.J. 159, 162 (CMA 1991); see also United States v. Powell, 49 M.J. 460,

463 (CAAF 1998) (“[CCAs] enjoy much broader appellate authority than

civilian intermediate courts or our Court.”); United States v. Riley, 47 M.J.

276, 281 (CAAF 1997) (Gierke, J., concurring) (whereas “a [CCA] may

take notice of errors of law, whether or not they were preserved by timely

objection[, the CAAF] is constrained by the rules of waiver and the

doctrine of plain error”). Indeed, the CAAF applies plain error even when

the CCA reviewed a forfeited issue de novo. See, e.g., Riley, 47 M.J. at

279–80 (majority op.); United States v. Goings, 72 M.J. 202, 203–04

(CAAF 2013); Tunstall, 72 M.J. at 193–96; United States v. Sweeney, 70

M.J. 296, 300 n.8, 304 (CAAF 2011).

24

Second, even if we could bypass the plain-error standard

and review Bahlul’s Article III challenge de novo, I would

follow the en banc court and decline to do so here.

Preliminarily, my colleagues are wrong to suggest that the

Supreme Court has “instructed that courts should excuse

waivers of Article III structural claims.” Maj. Op. 8

(emphasis added). Quite the contrary: it is a “rare” case in

which we entertain a forfeited Article III argument. Plaut,

514 U.S. at 232 (quoting Freytag, 501 U.S. at 878–79).

Enforcing the traditional rules of waiver and forfeiture in the

context of a Judicial Power Clause challenge, as in other

contexts, serves the important interests of “increasing judicial

efficiency and checking gamesmanship.” Sharif, No. 13-935,

slip op. at 19. Moreover, several factors unique to Bahlul’s

case make it a particularly inappropriate occasion to forgive

his forfeiture.

Most notably, my colleagues’ application of de novo

review leads them to invalidate a provision of the 2006

MCA—a duly enacted statute produced by a coequal branch.

See Rostker, 453 U.S. at 64 (“[W]e must have due regard to

the fact that this Court is not exercising a primary judgment

but is sitting in judgment upon those who also have taken the

oath to observe the Constitution and who have the

responsibility for carrying on government.” (quotation marks

omitted)). Examining the constitutionality of a statute is

“legitimate only in the last resort, and as a necessity.”

Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345

(1892); see also Pearson v. Callahan, 555 U.S. 223, 241

(2009) (courts should not “pass on questions of

constitutionality unless such adjudication is unavoidable”

(ellipsis omitted)); Lyng v. Nw. Indian Cemetery Protective

Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and

longstanding principle of judicial restraint requires that courts

avoid reaching constitutional questions in advance of the

25

necessity of deciding them.”); N. Pipeline Constr. Co. v.

Marathon Pipe Line Co., 458 U.S. 50, 90 (1982) (Rehnquist,

J., concurring in judgment) (“Particularly in an area of

constitutional law such as that of ‘Art. III Courts,’ with its

frequently arcane distinctions and confusing precedents,

rigorous adherence to the principle that this Court should

decide no more of a constitutional question than is absolutely

necessary accords with both our decided cases and with sound

judicial policy.”). Restraint is particularly necessary here

because our decision affects sensitive matters of national

security, the consequences of which we have neither the

information nor the perspicacity to predict. See Dep’t of Navy

v. Egan, 484 U.S. 518, 530 (1988) (“courts traditionally have

been reluctant to intrude . . . in military and national security

affairs”); Latif v. Obama, 677 F.3d 1175, 1182 (D.C. Cir.

2011) (“Both the Constitution and common sense support

judicial modesty” in this area because “the judiciary has the

least competence and the smallest constitutional footprint.”);

Humanitarian Law Project, 561 U.S. at 34 (“[N]ational

security and foreign policy concerns arise in connection with

efforts to confront evolving threats in an area where

information can be difficult to obtain and the impact of certain

conduct difficult to assess.”).

Further, excusing Bahlul’s forfeiture would not serve the

interests of justice because he is concededly—and

unapologetically—guilty of the charged offenses. Before the

military commission, Bahlul candidly admitted to being a

member of al Qaeda and engaging in all of the conduct

attributed to him. See App. 190–94. Although he took one

exception to the charge that he wore an explosive belt in order

to protect bin Laden, he also noted, “[T]his doesn’t mean that

if I was given an explosive belt and bin Laden . . . asked me to

explode myself, that I wouldn’t do that. Of course, I would.”

App. 194. He promised to continue “to fight America” if

26

released “until the last drop of blood.” App. 161–62; see also

App. 161 (“I will not leave the American government

anywhere on the face of this earth.”). As I explain later, infra

pp. 38–42, Bahlul’s conduct was indisputably illegal under

international law, whether or not he was charged with an

offense the international community expressly recognizes.

See Marcus, 560 U.S. at 265 (declining to exempt from plain-

error review “errors that create a risk that a defendant will be

convicted based exclusively on noncriminal conduct”). The

notion that we should pardon Bahlul’s forfeiture is “so

ludicrous as itself to compromise the public reputation of

judicial proceedings.” Puckett, 556 U.S. at 143; see also

Cotton, 535 U.S. at 634 (“The real threat . . . to the ‘fairness,

integrity, and public reputation of judicial proceedings’ would

be if respondents, despite the overwhelming and

uncontroverted evidence that they were [guilty], were to

[benefit from] an error that was never objected to at trial.”).

Finally, nothing prevented Bahlul from raising his

constitutional challenges before the military commission. See

Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 571

F.3d 69, 76 (D.C. Cir. 2009) (declining to forgive forfeiture

because party “offer[ed] no justification for its delay”).

Bahlul chose to “boycott” the proceedings in the hope it

would “make the Muslims rise for [al Qaeda’s] cause.” App.

156, 162. By rejecting the assistance of counsel and

voluntarily absenting himself from the proceedings, forfeiture

was “one of the perils [Bahlul] assume[d].” United States v.

Vonn, 535 U.S. 55, 73 n.10 (2002). Bahlul had every

opportunity to raise his challenges and he must accept the

consequences of his deliberate failure to do so. See Puckett,

556 U.S. at 136.

Nor is this a case where applying the ordinary rules of

forfeiture would forever prevent de novo review of the

27

constitutionality of the challenged provision. This concern

may have been the principal motivation behind Schor. The

law at issue in Schor permitted the CFTC to hear state-law

counterclaims in reparations proceedings. 478 U.S. at 837.

But the CFTC’s jurisdiction was non-exclusive: parties

remained free to bring reparations claims in federal court. Id.

at 836. Thus, parties who chose to litigate before the CFTC

arguably waived their right to complain about the CFTC’s

adjudication of state-law counterclaims. The same was true

for the parties who raised the counterclaims—which were

permissive, not compulsory, under the relevant law. Id. at

837. As a result, the Supreme Court faced a dilemma. If the

ordinary rules of waiver applied, no court could ever

determine whether the CFTC’s adjudication of state-law

counterclaims violated the Judicial Power Clause of Article

III. This Catch-22 likely animated the Schor Court’s decision

to excuse the waiver and explains why it thought that “the

parties cannot be expected to protect” the “institutional

interests” behind Article III. Id. at 851. Here, that concern is

plainly absent because every enemy combatant has the

ability—and incentive—to challenge the military

commission’s jurisdiction. See Bond v. United States, 131

S. Ct. 2355, 2365 (2011) (“[T]he claims of individuals—not

of Government departments—have been the principal source

of judicial decisions concerning separation of powers and

checks and balances.”); Daniel J. Meltzer, Legislative Courts,

Legislative Power, and the Constitution, 65 IND. L.J. 291, 304

(1990) (“[T]he strategic interests of litigants substantially

coincide with institutional interests protected by article III.”).

We can indeed check “the power of the political branches to

sideline the federal courts,” Maj. Op. 6, once an enemy

combatant properly preserves the argument. See Sharif, No.

13-935, slip op. at 19 (“the Article III right is substantially

honored” notwithstanding courts “permitting waiver” in some

cases).

28

In sum, I believe my colleagues err by parting ways with

the en banc court and reviewing Bahlul’s Article III challenge

de novo. Their decision to sidestep the plain-error standard

reads too much into an obscure passage from Schor—a

reading the Supreme Court disavowed in Plaut and overruled

in Sharif—and ignores important distinctions between civil

and criminal cases. Cf. Sharif, No. 13-935, dissenting op. at

18 (Thomas, J.) (Article III issues “cannot—and should not—

be resolved through a cursory reading of Schor, which itself is

hardly a model of careful constitutional interpretation”).

Applying the plain-error standard of review, I would

easily reject Bahlul’s challenges to his conspiracy conviction.

The plain-error standard is “difficult” to satisfy, “as it should

be.” United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9

(2004). The forfeited error must be “so obvious” that “the

trial judge and prosecutor were derelict in countenancing it.”

Bolla, 346 F.3d at 1153. Here, the Congress’s decision to

authorize the trial of conspiracy by military commission did

not plainly transcend Article III, as the en banc court’s

decision and my colleague’s concurrence impliedly recognize.

See Bahlul, 767 F.3d at 18–27; Concur. Op. 1–2. At the very

least, “the lack of prior precedent . . . and the novelty of the

issue presented militate against calling th[is] mistake plain

error.” United States v. Blackwell, 694 F.2d 1325, 1342 (D.C.

Cir. 1982); see also United States v. Terrell, 696 F.3d 1257,

1260 (D.C. Cir. 2012) (error not plain unless “a clear

precedent in the Supreme Court or this circuit establishe[s] its

erroneous character”). Thus, no matter one’s view of the

merits, Bahlul cannot satisfy the “plainness” requirement of

the plain-error standard. See Olano, 507 U.S. at 732. Nor do

I believe he can satisfy the “error” requirement, a topic I turn

to now.

29

II. THE CONSTITUTIONAL CHALLENGES

Bahlul argues that (i) the Congress—in codifying

conspiracy to commit war crimes as an offense triable by

military commission—exceeded its Article I powers and

independently violated Article III; (ii) he was convicted based

on his thoughts, beliefs and ideals in contravention of the First

Amendment; and (iii) the 2006 MCA discriminates against

him as an alien in violation of the equal protection component

of the Fifth Amendment. The latter two arguments are

frivolous on their face. See infra Part II.C. Bahlul’s Article I

and Article III arguments, however, warrant a more thorough

examination.

As detailed below, the Congress acted within its Article I

authority and did not contravene any personal or structural

Article III principles in codifying conspiracy as an offense

triable by military commission. Bahlul’s conspiracy trial and

conviction were sanctioned by the President, 9 “pursuant to an

express . . . authorization of Congress.” Youngstown, 343

U.S. at 635 (Jackson, J., concurring). Their constitutionality

is therefore “supported by the strongest of presumptions and

the widest latitude of judicial interpretation, and the burden of

persuasion . . . rest[s] heavily upon” Bahlul to rebut it. Id. at

637. Additionally:

[T]he detention and trial of petitioner[]—ordered by

the President in the declared exercise of his powers

as Commander in Chief of the Army in time of war

and of grave public danger—are not to be set aside

9

See Bahlul, 767 F.3d at 6 (“In 2003, the President designated Bahlul

eligible for trial by military commission and in 2004 military prosecutors

charged him with conspiracy to commit war crimes.”).

30

by the courts without the clear conviction that they

are in conflict with the Constitution . . . .

Ex parte Quirin, 317 U.S. 1, 25 (1942) (emphasis added). 10

A. ARTICLE I

Bahlul begins with an uncontroversial premise: “law-of-

war military commissions” can try only those “offenses

against the law of war.” Pet’r’s Br. 12 (quoting Bahlul, 767

F.3d at 7). But he then embroiders that premise with

needlework that produces naught but knots. First, he insists

that the Congress’s power to codify a law-of-war offense

derives exclusively from the Define and Punish Clause, U.S.

CONST. art I, § 8, cl. 10. Second, he argues that the Define

and Punish Clause allows the Congress to codify a law-of-war

offense only if the international community has expressly

agreed, element-by-element, that the offense is cognizable.

And based on the Government’s concession that “conspiracy

has not attained recognition at this time as an offense under

customary international law,” Gov’t’s En Banc Br. at 34,

Bahlul insists that “[t]he answer . . . is both plain and

10

In Hamdan, the plurality flipped Quirin’s “clear conviction” language,

stating “[w]hen . . . neither the elements of the offense nor the range of

permissible punishments is defined by statute or treaty, the precedent must

be plain and unambiguous” because “[t]o demand any less would be to

risk concentrating in military hands a degree of adjudicative and punitive

power in excess of that contemplated either by statute or by the

Constitution.” Hamdan, 548 U.S. at 602 (plurality). Justice Thomas, in

dissent, correctly pointed out that “[t]his is a pure contrivance, and a bad

one at that. It is contrary to the [clear conviction] presumption we

acknowledged in Quirin.” Id. at 690 (Thomas, J., dissenting). In any

event, the Quirin presumption, even by the Hamdan plurality’s lights,

applies here because Bahlul’s offense is “defined by statute”—namely, the

2006 MCA. See id. at 602 (plurality).

31

uncontested”: conspiracy falls outside the Congress’s Article I

power. Pet’r’s Br. 24.

Both of Bahlul’s embroidered premises are wrong. Even

under the Define and Punish Clause alone, the Congress has

the constitutional authority to codify conspiracy to commit

war crimes by military commission. The international

community does recognize that Bahlul violated “the

principles of the law of nations, as they result from the usages

established among civilized peoples, from the laws of

humanity and the dictates of the public conscience,” Quirin,

317 U.S. at 35, and the Congress has done nothing more than

provide for “the limits or precise meaning” of those principles

in authorizing the trial and sentencing by military commission

for the violation thereof. 11 U.S. Op. Atty. Gen. 297, 299

(1865) (then–Attorney General James Speed’s review of

Lincoln conspirators’ trial).

Bahlul’s other embroidered premise fares no better. The

Congress does not derive its power to enumerate war crimes

triable by military commission solely from the Define and

Punish Clause. As the Supreme Court has recognized, the

“capture, detention, and trial of unlawful combatants” are

“ ‘important incidents of war,’ ” Hamdi v. Rumsfeld, 542 U.S.

507, 518 (2004) (plurality) (quoting Quirin, 317 U.S. at 28

(emphases added) (alteration omitted)), and the Congress’s

power to conduct war, in all of its “incidents,” necessarily

derives from its several Article I war powers mutatis

mutandis. “[U]nlike the Define and Punish Clause, . . . the

other Article I war powers clauses do not refer to international

law and are not defined or constrained by international law.”

Bahlul, 767 F.3d at 73 (Kavanaugh, J., concurring/dissenting).

32

1. Define and Punish Clause

The Define and Punish Clause declares that “[t]he

Congress shall have Power . . . [t]o define and punish Piracies

and Felonies committed on the high Seas, and Offences

against the Law of Nations.” U.S. CONST . art. I, § 8, cl. 10.

The power to “define” means that the Congress can

“determine,” “decide” or “lay down definitely” offenses

against the law of nations. Define, OXFORD ENGLISH

DICTIONARY (2d ed. 1989). The word “define”—especially

joined by the conjunction “and”—has teeth.

At the Constitutional Convention, the debate over the

Define and Punish Clause focused on whether the Congress

should be given the power to do more than merely punish

violations of the law of nations. An early draft of the Clause

recited that the Congress could “define & punish piracies and

felonies on the high seas” but could only “punish offenses

agst. the law of nations.” Charles D. Siegal, Deference and

Its Dangers: Congress’ Power to “Define . . . Offenses

Against the Law of Nations”, 21 VAND. J. TRANSNAT’ L L.

865, 876 (1988) (quoting 2 THE RECORDS OF THE FEDERAL

CONVENTION OF 1787, at 614 (Farrand ed. 1937) (Madison’s

notes) (emphasis added)). Gouverneur Morris, a

Pennsylvania delegate to the Constitutional Convention,

“moved to strike out ‘punish’ before the words ‘offenses agst.

the law of nations’ ” so that they would be “definable as well

as punishable, by virtue of the preceding member of the

sentence.” Id. (emphasis in original). James Wilson, another

Pennsylvania delegate, objected, arguing that “[t]o pretend to

define the law of nations” would give the drafters a “look of

arrogance” and “make us ridiculous.” Id. (emphasis in

original). In rejoinder, Morris explained that passive reliance

on the international community was unworkable because “the

law of nations [is] often too vague and deficient to be a rule.”

33

Id. (alterations omitted); see also THE FEDERALIST NO. 42, at

266 (Madison) (explaining that “define” power was necessary

to secure “certainty and uniformity”). Morris’s approach

carried the day, establishing that the Congress was not

reflexively to follow other nations’ lead in formulating

offenses but instead to contribute to their formulation. See

Peter Margulies, Defining, Punishing, and Membership in the

Community of Nations: Material Support and Conspiracy

Charges in Military Commissions, 36 FORDHAM INT’ L L.J. 1,

27 (2013) (“Morris’s concern suggested that Congress would

play a valuable role by not merely defining the law of nations

in a mechanical fashion, but refining that occasionally turgid

and murky stream of disparate sources.”); cf. 2 THE RECORDS

OF THE FEDERAL CONVENTION OF 1787, at 316 (Morris)

(“define . . . was said by others to be applicable to the creating

of offences”).

The Clause’s history and text suggest two principles

helpful to our interpretive task. The first is that international

law derives from “a myriad of sources” and is “vast and

always changing.” Margulies, supra, at 24; see also Bahlul,

767 F.3d at 54 (Brown, J., concurring/dissenting). Justice

Joseph Story, in 1820, recognized the varying nature of

international law, observing that “[o]ffences . . . against the

law of nations, cannot, with any accuracy, be said to be

completely ascertained and defined in any public code

recognised by the common consent of nations,” and therefore

the Congress was given the “power to define.” United States

v. Smith, 18 U.S. 153, 159 (1820). The observation has stood

the test of time. As declared at the Nuremburg International

Military Tribunal that tried the World War II war criminals:

[I]nternational law is not the product of an

international legislature, and . . . international

agreements . . . have to deal with general principles

34

of law. . . . The law of war is to be found not only in

treaties, but in the customs and practices of states

which gradually obtained universal recognition, and

from the general principles of justice applied by

jurists and practised by mil

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