Ali Hamza Ahmad al Bahlul v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 1, 2015 Decided October 20, 2016

No. 11-1324

ALI HAMZA AHMAD SULIMAN AL BAHLUL,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

On Petition for Rehearing En Banc

Michel Paradis, Counsel, Office of the Chief Defense

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

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

David Weissbrodt and William J. Aceves were on the

brief for amici curiae International Law Scholars in support

of petitioner.

J. Douglas Richards was on the brief for amicus curiae

National Institute of Military Justice in support of petitioner.

Robert Barton was on the brief for amicus curiae

Professor David Glazier in support of petitioner.

Ian Heath Gershengorn, Principal Deputy Solicitor

General, U.S. Department of Justice, argued the cause for

2

respondent. On the brief were Steven M. Dunne, Chief,

Appellate Unit, and John F. De Pue and Joseph Palmer,

Attorneys.

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

Former Government Officials, Former Military Lawyers, and

Scholars of National Security Law in support of respondent.

Richard A. Samp was on the brief for amici curiae John

D. Altenburg, Maj. Gen., U.S. Army (Ret)., et al. in support

of respondent.

Before: GARLAND, Chief Judge, and HENDERSON,

ROGERS, TATEL, BROWN, GRIFFITH, KAVANAUGH,

SRINIVASAN, MILLETT, PILLARD, and WILKINS, Circuit

Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge KAVANAUGH,

with whom Circuit Judges BROWN and GRIFFITH join.

Concurring opinion filed by Circuit Judge MILLETT.

Concurring opinion filed by Circuit Judge WILKINS.

Joint Dissenting opinion filed by Circuit Judges ROGERS,

TATEL, and PILLARD.



Chief Judge Garland was a member of the en banc court at the

time the case was argued but did not participate in this opinion.



Circuit Judge Srinivasan did not participate in this matter.

3

PER CURIAM: Bahlul is a member of al Qaeda who

assisted Osama bin Laden in planning the September 11,

2001, attacks on the United States. Bahlul was convicted by a

U.S. military commission of the offense of conspiracy to

commit war crimes, among other offenses. The U.S. Court of

Military Commission Review affirmed Bahlul’s conviction.

In a prior en banc decision, we recounted the facts and

considered Bahlul’s Ex Post Facto Clause objection to the

conspiracy conviction. Applying plain error review, we

concluded that the Ex Post Facto Clause did not preclude the

conspiracy charge against Bahlul. See Al Bahlul v. United

States, 767 F.3d 1 (D.C. Cir. 2014) (en banc).

In this en banc case, Bahlul argues that Articles I and III

of the Constitution bar Congress from making conspiracy an

offense triable by military commission, because conspiracy is

not an offense under the international law of war.

We affirm the judgment of the U.S. Court of Military

Commission Review upholding Bahlul’s conspiracy

conviction. Six judges – Judges Henderson, Brown, Griffith,

Kavanaugh, Millett, and Wilkins – have voted to affirm.

Three judges – Judges Rogers, Tatel, and Pillard – dissent.

Of the six-judge majority, four judges (Judges

Henderson, Brown, Griffith, and Kavanaugh) would affirm

because they conclude that, consistent with Articles I and III

of the Constitution, Congress may make conspiracy to

commit war crimes an offense triable by military commission.

They would uphold Bahlul’s conspiracy conviction on that

basis.

4

Judge Millett would apply plain error review and affirm

Bahlul’s conviction under that standard of review. She would

not reach the question of whether Congress may make

inchoate conspiracy an offense triable by military

commission.

Judge Wilkins would affirm because he concludes that

the particular features of Bahlul’s conviction demonstrate that

Bahlul was not convicted of an inchoate conspiracy offense.

He further concludes that Bahlul’s conviction complies with

the Constitution because the particular features of Bahlul’s

conviction have sufficient roots in international law. He

therefore would not reach the question of whether Congress

may make inchoate conspiracy an offense triable by military

commission.

Judges Rogers, Tatel, and Pillard have filed a Joint

Dissent. They conclude that Article III of the Constitution

bars Congress from making inchoate conspiracy an offense

triable by a law-of-war military commission.

Bahlul has also raised First Amendment and Equal

Protection challenges to his conviction. The Court rejects

those challenges. See Kavanaugh Concurring Op. at 24 n.12;

Millett Concurring Op. at 2, 44-45; Wilkins Concurring Op. at

14. The Joint Dissent neither reaches those claims nor adopts

the above characterization of the facts.

***

We affirm the judgment of the U.S. Court of Military

Commission Review upholding Bahlul’s conspiracy

conviction.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I join the Court’s judgment affirming Bahlul’s conspiracy

conviction. I do so for the reasons stated in my dissent in Al

Bahlul v. United States, 792 F.3d 1, 27-72 (D.C. Cir. 2015)

(since vacated). I incorporate by reference thereto that

previously published opinion as my concurrence here.

‎KAVANAUGH, Circuit Judge, with whom Circuit Judges

BROWN and GRIFFITH join, concurring: Pursuant to

congressional authorization, Presidents throughout U.S.

history have employed military commissions to try enemy

war criminals for conspiracy to commit war crimes. That

history includes the two most significant U.S. military

commission trials: the 1865 military commission trial of the

Confederate conspirators who plotted to kill President Lincoln

and the 1942 military commission trial of the Nazi

conspirators who secretly entered the United States during

World War II and planned to attack U.S. infrastructure and

military facilities.

In‎the‎wake‎of‎al‎Qaeda’s‎attacks‎on‎the‎United‎States‎on‎

September 11, 2001, Congress has twice passed laws (signed

by President Bush in 2006 and President Obama in 2009)

expressly reaffirming that military commissions may try

unlawful enemy combatants for conspiracy to commit war

crimes. Pursuant to those express congressional

authorizations, President Bush and later President Obama

have employed military commissions to try alleged al Qaeda

war criminals for the offense of conspiracy to commit war

crimes. Indeed, Khalid Sheikh Mohammed, one of the

alleged masterminds of the September 11th attacks, faces a

conspiracy charge in his pending military commission trial.

Several other al Qaeda members likewise have been charged

with conspiracy before U.S. military commissions.

Bahlul is an al Qaeda member who worked closely with

Osama‎ bin‎ Laden‎ in‎ plotting‎ al‎ Qaeda’s‎ September‎ 11th‎

attacks on the United States. In December 2001, Bahlul was

captured in Pakistan. In 2008, he was tried and convicted

before a U.S. military commission of conspiracy to commit

war crimes.

Citing Article I and Article III of the Constitution, Bahlul

argues that Congress may establish military commissions only

2

for offenses under the international law of war. Bahlul

further argues (and the Government concedes) that conspiracy

is not an offense under the international law of war.

Therefore, Bahlul contends that he may not be tried for

conspiracy before a U.S. military commission.

On‎its‎face,‎Bahlul’s‎argument‎is‎extraordinary.‎It‎would‎

incorporate international law into the U.S. Constitution as a

judicially enforceable constraint on Congress and the

President. As a matter of U.S. constitutional law, the wartime

decisions of Congress and the President to try unlawful

enemy combatants before military commissions would be

subject to the dictates of foreign nations and the international

community, as embodied in international law.

The Government responds that, under the Constitution,

Congress may establish military commissions to try, at a

minimum, (i) international law of war offenses and

(ii) offenses that are not international law of war offenses but

have historically been tried by U.S military commissions. As

the Government points out, conspiracy has historically been

tried by U.S. military commissions.

This case therefore raises one central legal question:

Under the U.S. Constitution, may Congress establish military

commissions to try unlawful enemy combatants for the

offense of conspiracy to commit war crimes, even if

conspiracy is not an offense under the international law of

war? The answer is yes. We know that from the text and

original understanding of the Constitution; the structure of the

Constitution; landmark Supreme Court precedent;

longstanding congressional practice, as reflected in venerable

3

and contemporary federal statutes; and deeply rooted

Executive Branch practice, from the 1800s to the present.1

1

The Government argues that Bahlul forfeited this claim.

Even if that were true, the Court should review the claim de novo,

not simply for plain error. In rare and extraordinarily important

cases, the Court has discretion to hear even a forfeited claim de

novo. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232

(1995). The question of whether conspiracy may constitutionally

be tried by military commission is extraordinarily important and

deserves‎ a‎ “definitive answer.”‎ ‎ Al Bahlul v. United States, 767

F.3d 1, 62 (D.C. Cir. 2014) (en banc) (separate opinion of Brown,

J.). The question implicates an important part of the U.S.

Government’s‎war‎strategy.‎‎And‎other cases in the pipeline require

a clear answer to the question. This case unfortunately has been

pending in this Court for more than five years. It is long past time

for us to resolve the issue squarely and definitively.

Judge Kavanaugh adds that he would apply de novo review for

that reason, as well as for any of five other independent reasons.

First, before the military judge, Bahlul objected to the military

commission’s‎authority‎to‎try‎him‎for‎the‎charged‎offenses. Bahlul

did not forfeit this claim. Second, even if Bahlul had not objected,

the question of whether the Constitution requires Article III courts

to try conspiracy offenses is a structural question of subject matter

jurisdiction, and cannot be forfeited or waived. See Ex Parte

Quirin, 317 U.S. 1, 25 (1942) (describing the question as one of

“jurisdiction”).‎‎Third, in any event, Rules 905 and 907 of the Rules

for Military Commissions require de novo judicial review of the

question whether a charged offense may be tried by military

commission. Fourth, even if all of those points are incorrect, the

Government has repeatedly forfeited any forfeiture argument

during the course of this litigation. For example, before the U.S.

Court of Military Commission Review, the Government expressly

acknowledged‎that‎Bahlul’s‎argument‎was‎not forfeited or waived.

See Bahlul Appendix at 161 n.5 (quoting‎ Government’s‎

submission: “The‎ Government‎ does‎ not‎ argue”‎ that‎ Bahlul’s‎

argument‎“questioning‎jurisdiction”‎is “waived.”).‎‎Only‎at‎the‎11th‎

hour has the Government belatedly claimed that Bahlul forfeited his

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I

We first address the Article I issue. Bahlul acknowledges

that Congress possesses authority under Article I to establish

military commissions to try war crimes. But he contends that

military commissions may try only international law of war

offenses. Bahlul further argues (and the Government

concedes) that conspiracy is not an international law of war

offense. Therefore, Bahlul says he may not be tried by

military commission for conspiracy.

Contrary‎ to‎ Bahlul’s‎ argument, Article I of the

Constitution does not impose international law as a limit on

Congress’s‎ authority‎ to‎ make‎ offenses‎ triable‎ by‎ military‎

commission.2 That is apparent from five sources of law: the

text and original understanding of Article I, the overall

structure of the Constitution, landmark Supreme Court

precedent, longstanding federal statutes, and deeply rooted

U.S. military commission practice.

constitutional argument. Fifth, even if Bahlul forfeited his

argument and plain error review applied here, the Court when

applying plain error often holds that there was no error, rather than

merely holding that any possible error was not plain. We should do

the same here.

2

To be clear, Congress may and sometimes does incorporate

international law principles into statutes. In doing so, Congress may

on‎occasion‎enact‎statutes‎that‎simply‎refer‎to‎“international‎law”‎in‎

general terms. See, e.g., 22 U.S.C. §§ 5604-5605 (empowering the

President to impose sanctions on foreign countries that use

chemical‎or‎biological‎weapons‎“in‎violation‎of‎international‎law”).

Likewise, the President and Senate may enter into self-executing

treaties with foreign nations. See Medellin v. Texas, 552 U.S. 491,

505 n.2 (2008). Those statutes and self-executing treaties are U.S.

law, not international law.

5

First, the text and original understanding of Article I

demonstrate that international law does not impose a limit on

Congress’s‎ authority‎ to‎ make‎ offenses‎ triable‎ by‎ military‎

commission.

The‎ premise‎ of‎ Bahlul’s‎ Article‎ I‎ argument‎ is‎ that‎

Congress’s‎ sole source of constitutional authority to make

offenses triable by military commission is the Define and

Punish Clause of Article I. That Clause grants Congress

authority‎to‎“define‎and‎punish . . . Offences against the Law

of‎Nations.”‎‎U.S. CONST. art. I, § 8, cl. 10. Bahlul argues that

the‎ “law‎ of‎ nations”‎ is‎ a‎ synonym‎ for‎ international‎ law,‎ and‎

further contends that conspiracy is not an offense under the

international law of war. Therefore, according to Bahlul,

Congress lacks power under Article I, Section 8 to make

conspiracy an offense triable by military commission.

We need not decide the scope of the Define and Punish

Clause in this case.3 That‎is‎because‎the‎premise‎of‎Bahlul’s‎

Article I argument is flawed. Regardless of the scope of the

Define and Punish Clause, an issue we do not decide,

Congress’s‎ Article‎ I‎ authority‎ to‎ establish‎ military‎

commissions – including its authority to determine which

crimes may be tried by military commission – does not derive

exclusively from that Clause.

3

Judge Henderson and Judge Brown have previously

concluded that the Define and Punish Clause grants Congress

authority to make conspiracy an offense triable by military

commission. See Al Bahlul v. United States, 792 F.3d 1, 44-55

(D.C. Cir. 2015) (Henderson, J., dissenting); Al Bahlul v. United

States, 767 F.3d 1, 53-62 (D.C. Cir. 2014) (en banc) (separate

opinion of Brown, J.).

6

Rather, the war powers clauses in Article I, Section 8 –

including the Declare War Clause and the Captures Clause,

together with the Necessary and Proper Clause – supply

Congress with ample authority to establish military

commissions and make offenses triable by military

commission. And the Declare War Clause and the other war

powers clauses in Article I do not refer to international law or

otherwise impose international law as a constraint on

Congress’s‎ authority‎ to‎ make‎ offenses‎ triable‎ by‎ military‎

commission. Cf. Al Bahlul v. United States, 792 F.3d 1, 55-

56 (D.C. Cir. 2015) (Henderson, J., dissenting).

As the Supreme Court has long recognized, a

congressional authorization of war pursuant to the Declare

War‎ Clause‎ is‎ understood‎ “by‎ universal‎ agreement‎ and‎

practice”‎to‎encompass‎all‎of‎the‎traditional‎incidents‎of‎war‎–

including the power to kill, capture, and detain enemy

combatants, and most relevant here, the power to try unlawful

enemy combatants by military commission for war crimes.

Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (binding

opinion‎of‎O’Connor,‎J.);‎see also Hamdan v. Rumsfeld, 548

U.S. 557, 593-94 (2006); In re Yamashita, 327 U.S. 1, 11-12

(1946).4 As Colonel William Winthrop, described by the

Supreme‎Court‎as‎the‎“Blackstone‎of‎Military‎ Law,”‎ Reid v.

Covert, 354 U.S. 1, 19 n.38 (1957) (plurality opinion),

summarized‎ it:‎ “[I]n general, it is those provisions of the

Constitution‎ which‎ empower‎ Congress‎ to‎ ‘declare‎ war’‎ and‎

‘raise‎armies,’‎and‎which,‎in‎authorizing‎the‎initiation‎of‎war,

authorize the employment of all necessary and proper

agencies for its due prosecution, from which this tribunal

derives its original sanction. . . . The commission is simply an

4

On September 18, 2001, Congress authorized the use of force

against al Qaeda and related terrorist groups. See Authorization for

Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224.

7

instrumentality for the more efficient execution of the war

powers vested in Congress and the power vested in the

President as Commander-in-chief‎ in‎ war.”‎ ‎ WILLIAM

WINTHROP, MILITARY LAW AND PRECEDENTS 831 (rev. 2d

ed. 1920); see also Hamdan, 548 U.S. at 592 n.21 (quoting

Winthrop’s‎ statement‎ that‎ the‎ Declare‎ War‎ Clause,‎ among‎

others, supplies Congress with authority to establish military

commissions to try war crimes). So too, Justice Story

explained‎ that‎ Congress’s‎ power‎ to‎ make‎ substantive‎ and‎

procedural‎ rules‎ for‎ military‎ commissions‎ is‎ a‎ “natural‎

incident to the preceding powers to make war, to raise armies,

and‎ to‎ provide‎ and‎ maintain‎ a‎ navy.”‎ ‎ 3‎ JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES § 1192 (1833).5

In short, it would be textually and historically inaccurate

to deem the Define and Punish Clause, whatever its scope, as

the sole source‎ of‎ Congress’s‎ authority‎ here.‎ ‎ The‎ Declare‎

War Clause and the other war powers clauses in Article I

authorize Congress to establish military commissions and

make offenses triable by military commission. And those

clauses do not refer to international law or otherwise impose

international law as a constraint on Congress’s‎ authority‎ to‎

make offenses triable by military commission. By their

terms, therefore, those clauses do not confine U.S. military

commissions to trying only international law of war offenses.

5

Contrary to the suggestion advanced by Bahlul and the joint

dissent, it would be absurd to say that the war powers clauses grant

Congress authority to establish military commissions but not to

specify which offenses may be tried by military commission. There

is no support in Supreme Court precedent for slicing and cabining

Congress’s‎ war‎ powers‎ authority‎ in‎ that‎ way.‎ Moreover,‎ the‎

longstanding historical practice in the Legislative and Executive

Branches flatly contravenes that suggestion.

8

Second, the overall structure of the Constitution strongly

reinforces the conclusion that international law does not

impose‎ a‎ limit‎ on‎ Congress’s‎ authority‎ to‎ make‎ offenses‎

triable by military commission.

The Framers of the Constitution paid careful attention to

the allocation of war powers between the national government

and the states, and within the national government. The

Framers assigned the national government – in particular,

Congress and the President – the authority to make wartime

decisions on behalf of the United States. The Framers

assigned that power to the national government in part

because the inability to wage war effectively had been one of

the key weaknesses of the Articles of Confederation, and the

Framers sought to fix that flaw.

What matters most for present purposes is that the

Framers certainly did not purport to afford foreign nations

(acting through the international law of war or otherwise) any

constitutional authority over the wartime decisions of the

United States, such as the determination of which war crimes

may be prosecuted by U.S. military commissions. It would be

a historical‎ anomaly‎ to‎ conclude‎ that‎ “We‎ the‎ People‎ of‎ the‎

United‎States”‎gave‎foreign‎or‎international‎bodies‎the‎power‎

to constrain U.S. war-making authority in that way. Yet that

would be the necessary consequence of the argument put

forward by Bahlul and the joint dissent. They would

incorporate international law into the U.S. Constitution as a

judicially enforceable constraint on the wartime decisions of

the Congress and the President. As a matter of U.S.

constitutional law, Congress and the President would be

subject to the dictates of the international community, a

community that at any given time may be unsupportive of or

even hostile to U.S. national security interests.

9

Put simply, the argument advanced by Bahlul and the

joint‎ dissent‎ does‎ not‎ comport‎ with‎ the‎ Constitution’s‎

structure. The Constitution does not give foreign nations

(acting through the international law of war or otherwise) a de

facto‎veto‎over‎Congress’s‎determination‎of‎which‎war‎crimes

may be tried by U.S. military commissions.

Third,‎ consistent‎ with‎ the‎ Constitution’s‎ text‎ and‎

structure, landmark Supreme Court precedent likewise

supports‎the‎conclusion‎that‎Congress’s‎authority‎to‎establish‎

offenses triable by military commission is not confined by

international law.

The‎ Supreme‎ Court’s‎ leading‎ constitutional‎ decision‎

regarding military commissions is Ex Parte Quirin. There,

the Supreme Court ruled that use of military commissions to

try war crimes was constitutionally permissible. In doing so,

the Court emphasized that U.S. military commissions have

long been authorized by Congress, and the Court noted in

particular that military commissions have long tried the

offense of spying. See Ex Parte Quirin, 317 U.S. 1, 41-42 &

n.14 (1942). But spying was not and has never been an

offense under the international law of war. See Government

Br. 45 (spying not an international law of war offense); see

also National Institute of Military Justice Amicus Br. 14-15

n.6 (same); Curtis A. Bradley & Jack L. Goldsmith,

Congressional Authorization and the War on Terrorism, 118

HARV. L. REV. 2047, 2132 (2005) (same). The Court

nonetheless relied on and approved of trying spying offenses

by military commission.6 Quirin is admittedly a difficult

6

The Quirin Court’s‎discussion‎of‎spying‎was‎not‎dicta.‎‎One‎

primary basis for the‎ Court’s‎ finding‎ a‎ military‎ commission‎

exception to Article III was the longstanding statute that made

spying an offense triable by military commission. See Quirin, 317

U.S. at 41-42.‎But‎even‎if‎the‎Supreme‎Court’s‎reference‎to‎spying‎

10

decision‎ to‎ decipher.‎ ‎ But‎ the‎ Supreme‎ Court’s‎ reliance‎ on‎

spying, a non-international-law-of-war offense, as an offense

triable by military commission at least suggests – even if it

does not conclusively show – that Congress has authority

under Article I to make offenses triable by military

commission even if those offenses are not war crimes under

the international law of war.7

The Court in Quirin did not say that military

commissions are constitutionally permitted only for

international law of war offenses. Nor did any later Supreme

Court case hold that military commissions are constitutionally

permitted only for international law of war offenses. One

would have expected the Court at some point to say as much

if the Court actually thought as much.

were dicta, we as a lower court generally treat Supreme Court dicta

as authoritative. See United States v. Dorcely, 454 F.3d 366, 375

(D.C.‎Cir.‎2006)‎(“[C]arefully considered language of the Supreme

Court, even if technically dictum, generally must be treated as

authoritative.”) (internal quotation marks and citations omitted);

Bangor Hydro-Electric Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir.

1996)‎ (“It‎ may‎ be‎ dicta, but Supreme Court dicta tends to have

somewhat greater force – particularly when expressed so

unequivocally.”). The Quirin Court’s‎ discussion‎ of‎ spying‎ was‎

hardly the kind of stray comment that a lower court can or should

cast aside.

7

To be sure, the Quirin Court did not expressly state that

Congress may make non-international-law-of-war offenses triable

by military commission. Had it explicitly done so, the question

would be indisputably resolved and we would not be facing the

current litigation, after all. But in considering an objection to trial

by military commission, the Court did rely on a longstanding

statute that made spying, a non-international-law-of-war offense,

triable by military commission.

11

An amicus brief nonetheless argues that the Quirin Court

thought that international law was a constitutional constraint

on Congress but that the Quirin Court believed, albeit

mistakenly, that spying was an international law of war

offense. See National Institute of Military Justice Amicus Br.

at 14 n.6. The joint dissent agrees. See Dissenting Op. at 25-

26. That argument lacks foundation. To begin with, the

Supreme Court never said anything to the effect that

Congress’s‎ constitutional authority to make offenses triable

by military commission is constrained by the international law

of war. Moreover, the idea that the Court actually thought

spying was an international law offense necessarily assumes

that the Quirin Court – with Justices such as Harlan Fiske

Stone, Felix Frankfurter, Robert Jackson, and Hugo Black –

was ignorant of the content of international law. We cannot

plausibly make such an assumption. There is no indication in

the opinion or historical record that the Quirin Court actually

believed that spying was an international law of war offense.

Nor do any later Supreme Court cases suggest as much. On

the contrary, the Quirin Court cited authorities that indicated

that spying was not an international law of war offense. See

Quirin, 317 U.S. at 30 n.7, 31 n.8, 32, 34, 37 (citing, among

other authorities, (i) the Hague Convention No. IV, art. 1

(annex), 36 Stat. 2295 and (ii) the 1940 U.S. War

Department’s‎ Rules‎ of‎ Land‎ Warfare,‎ which‎ states‎ in‎

Paragraph‎ 203‎ that‎ spying‎ “involves‎ no‎ offense‎ against

international‎law”).

To be sure, the Quirin Court discussed international law

authorities. Those international law authorities were relevant

for, among other things, determining whether the charged

offenses could be tried by military commission under Article

15 of the Articles of War, which is present-day Article 21 of

the Uniform Code of Military Justice, or 10 U.S.C. § 821.

That statute has long used‎ the‎ broad‎ term‎ “law‎ of‎ war”‎ to‎

12

define the scope of offenses triable by military commission.

The Court discussed those authorities in part because an

offense’s‎ status‎ as‎ an‎ international‎ law‎ of‎ war‎ offense‎ is‎

sufficient but not necessary to make an offense triable by U.S.

military‎ commission‎ under‎ the‎ “law‎ of‎ war”‎ prong‎ of‎ 10‎

U.S.C. § 821. See Quirin, 317 U.S. at 46; Al Bahlul v. United

States, 767 F.3d 1, 65-72 (D.C. Cir. 2014) (en banc) (separate

opinion of Kavanaugh, J.); see also Hamdan, 548 U.S. at 594-

95. But the Quirin Court never stated that the international

law of war constituted a constitutional limit‎ on‎ Congress’s‎

authority to make offenses triable by military commission.

Fourth, when we interpret the Constitution, especially the

provisions related to the separation of powers, the historical

practice of the Legislative and Executive Branches matters.

See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091, slip op. at 20

(2015)‎ (“In‎ separation-of-powers cases this Court has often

put‎ significant‎ weight‎ upon‎ historical‎ practice.”)‎ (internal‎

quotation marks omitted); NLRB v. Noel Canning, 134 S. Ct.

2550, 2560, slip op. at 7 (2014) (“[L]ongstanding practice of

the government can inform our determination of what the law

is.”)‎ (internal‎ quotation‎ marks‎ and‎ citations omitted); The

Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long‎ settled‎

and established practice is a consideration of great weight in a

proper interpretation of constitutional provisions .‎ .‎ .‎ .”);‎

McCulloch v. Maryland, 17 U.S. 316, 401 (1819) (when

considering a separation of powers question, court should

“receive‎ a‎ considerable‎ impression”‎ from‎ longstanding‎

practice).

In this case, turning first to the Legislative Branch,

Congress’s‎ longstanding‎ practice‎ strongly‎ supports‎ the‎

conclusion that international law is not a constitutional

constraint‎ on‎ Congress’s‎ authority‎ to‎ make‎ particular crimes

triable by military commission. From the earliest days of the

13

Republic, Congress has gone beyond international law in

specifying the offenses that may be tried by military

commission. Beginning in 1776, the Continental Congress

codified the offense of spying – a non-international-law

offense – as a crime triable by military tribunal. See

Resolution of the Continental Congress (Aug. 21, 1776), in 5

JOURNALS OF THE CONTINENTAL CONGRESS 1774 – 1789, at

693 (Worthington Chauncey Ford ed. 1906) [hereinafter

“JOURNALS”] (authorizing‎ trial‎ by‎ military‎ court‎ of‎ “all‎

persons, not members of, nor owing allegiance to, any of the

United States of America . . . who shall be found lurking as

spies”);‎ see also WILLIAM WINTHROP, MILITARY LAW AND

PRECEDENTS 765-66 & n.88 (rev. 2d ed. 1920). Likewise, in

September 1776, Congress authorized trial by military

tribunal for another non-international-law offense: aiding the

enemy. See Articles of War (Sept. 20, 1776), in 5 JOURNALS,

at 799. In 1789, after the Constitution was ratified, the First

Congress adopted the same Articles of War that had been

promulgated by the Continental Congress, including the

offenses of spying and aiding the enemy. See Act of Sept. 29,

1789, ch. 25, §4, 1 Stat. 95, 96 (1789). Again in 1806,

Congress updated those provisions and, in doing so, was

careful to preserve the offenses of spying and aiding the

enemy as crimes triable by military tribunal. See Articles of

War of 1806, ch. 20, arts. 56, 57, § 2, 2 Stat. 359, 366, 371

(1806). Both of those prohibitions remain on the books today.

See 10 U.S.C. §§ 950t(26), 950t(27). Congress has made

those two crimes triable by military commission even though

they are not international law of war offenses.

Congress’s‎ practice‎ of‎ going‎ beyond international law

has continued to the present. As recently as 2006 and 2009,

Congress enacted new laws making several non-international-

law offenses, such as solicitation and material support for

terrorism, triable by military commission. See Military

14

Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat.

2600, 2630; Military Commissions Act of 2009, Pub. L. No.

111-84, 123 Stat. 2574, 2611.

That consistent congressional practice requires our

respect.‎As‎the‎Supreme‎Court‎has‎stated,‎the‎“uniform, long-

continued and undisputed legislative practice just disclosed

rests upon an admissible view of the Constitution which, even

if the practice found far less support in principle than we think

it does, we should not feel at liberty at this late day to

disturb.”‎ United States v. Curtiss-Wright Export Corp., 299

U.S. 304, 329 (1936).

The joint dissent responds that Congress, over the course

of more than two centuries, actually thought itself bound by

international law but believed (mistakenly) that those offenses

– spying and aiding the enemy, for example – were in fact

international law offenses. See Dissenting Op. at 34-36. That

assertion seems to materialize out of thin air. We are aware

of no credible support for the notion that Congress has

believed itself bound by international law in this context or

has thought that those offenses were in fact international law

offenses. Moreover, the joint dissent does not deal with the

persistence of congressional practice – from the Founding to

the recent 2006 and 2009 Acts. In short, the deeply rooted

congressional‎ practice‎ directly‎ contradicts‎ the‎ joint‎ dissent’s‎

position.

Fifth, in addition to the historical practice in Congress,

the historical practice in the Executive Branch demonstrates

that international law is not a constraint on which offenses

may be tried by military commissions. Indeed, perhaps the

most telling factor when considering this constitutional

question is the deeply rooted history of U.S. military

commission trials of the offense of conspiracy, which is not

15

and has never been an offense under the international law of

war. Cf. Zivotofsky, 135 S. Ct. at 2091, slip‎ op.‎ at‎ 20‎ (“In‎

separation-of-powers cases this Court has often put significant

weight‎ upon‎ historical‎ practice.”)‎ (internal‎ quotation‎ marks‎

omitted); Noel Canning, 134 S. Ct. at 2560, slip op. at 7

(“[L]ongstanding practice of the government can inform our

determination‎ of‎ what‎ the‎ law‎ is”)‎ (internal‎ quotation‎ marks‎

and citations omitted).

The two most important military commission precedents

in U.S. history – the trials of the Lincoln conspirators and the

Nazi saboteurs – were trials for the offense of conspiracy.

Consider the trial of the Lincoln conspirators. After

seeking the advice of the Attorney General, President Andrew

Johnson decided to try the Lincoln conspirators by military

commission rather than by criminal trial in civilian court. See

Military Commissions, 11 Op. Attorney Gen. 297, 298

(1865). The Lincoln conspirators were expressly charged with

and convicted of conspiracy – in that case, conspiracy to

violate the law of war by killing the President and

Commander in Chief of the Union Army, Abraham Lincoln.

Indeed, conspiracy was the only offense charged against them.

After an extensive multi-week trial that gripped the Nation

and after vigorous argument about the facts and the

commission’s‎ jurisdiction,‎ numerous‎ conspirators‎ were‎

convicted of conspiracy.

The joint dissent tries to cast doubt on whether the

Lincoln conspirators were actually tried for conspiracy. There

is no doubt. Consider what a contemporary court said in

response to a habeas petition filed by three of the Lincoln

conspirators:‎ ‎ “[T]he‎ prisoners‎ are‎ guilty‎ of‎ the‎ charge‎ on‎

which they were convicted – of a conspiracy to commit the

military crime which one of their number did commit, and

16

some‎of‎them‎of‎more‎or‎less‎participation.”‎‎Ex parte Mudd,

17 F. Cas. 954 (S.D. Fla. 1868).8 Indeed, in the prior en banc

decision in this case, our Court (joined by one of the judges

who joins the joint dissent today) described the Lincoln case

as‎ a‎ trial‎ for‎ conspiracy‎ and‎ stated‎ that‎ “the‎ sole‎ offense‎

alleged‎was‎conspiracy.”‎Al Bahlul v. United States, 767 F.3d

1, 25 (D.C. Cir. 2014) (en banc). Our en banc Court

explained‎that‎the‎Lincoln‎case‎was‎a‎“particularly‎significant‎

precedent”‎ and‎ a‎ “high-profile example of a conspiracy

charge‎tried‎by‎a‎military‎commission.”‎Id.; see also Al Bahlul

v. United States, 792 F.3d 1, 59-61 (D.C. Cir. 2015)

(Henderson, J., dissenting).

Consider also the military commission trial of the eight

Nazi saboteurs who had been selected to execute Operation

Pastorius – Adolf‎ Hitler’s‎ plan‎ to‎ destroy‎ America’s‎ war‎

industries and facilities – and secretly entered the United

States during World War II. The defendants were expressly

charged with and convicted of conspiracy, as well as of other

offenses. Attorney General of the United States Francis

Biddle, who would later represent the United States as a judge

at Nuremberg, personally prosecuted the case before the

military commission. President Franklin Roosevelt reviewed

and approved all of the convictions. The defendants filed

habeas corpus petitions to block the proceedings as

unconstitutional. The Supreme Court affirmed the legality of

8

Although the original records for the Southern District of

Florida from that time period were initially lost, a copy of Judge

Boynton’s‎ opinion‎ for‎ the‎ court‎ is on file with the Library of

Congress. Moreover, the opinion was published in full in the New

York Times on October 1, 1868 – precisely one month after the

decision was handed down by the court. The Application in Behalf

of Dr. Mudd, Arnold and Spangler – Opinion of Judge Boynton,

N.Y. TIMES at 2 (Oct. 1, 1868).

17

the trial, and in doing so, did not disturb the conspiracy

charge. See Quirin, 317 U.S. at 46.

Later in World War II, moreover, the Government

prosecuted another set of Nazi saboteurs for conspiracy and

tried them before a military commission. In that case,

Assistant Attorney General Tom Clark, who would later serve

on the Supreme Court, produced a formal memorandum –

based in large part on the precedents involving the Lincoln

conspirators and the earlier Nazi saboteurs – concluding that

conspiracy was an offense triable by military commission.

See Memorandum from Tom C. Clark, Assistant Attorney

General, to Myron C. Kramer, Judge Advocate General (Mar.

12, 1945), reprinted in Government Supplemental Appendix

104-10.‎‎In‎Assistant‎Attorney‎General‎Clark’s‎words,‎it‎was‎

“well‎ established‎ that‎ a‎ conspiracy‎ to‎ commit‎ an‎ offense‎

against the laws of war is itself an offense cognizable by a

commission‎ administering‎ military‎ justice.” Id. at 110. The

military commission subsequently convicted the defendants of

conspiracy. President Truman reviewed and affirmed the

convictions. After one of those Nazi saboteurs later

challenged his conviction in court, the Tenth Circuit affirmed

the denial of his habeas petition, and the Supreme Court

denied certiorari. The Tenth Circuit stated the charges against

him‎ were‎ clearly‎ “within‎ the‎ jurisdiction‎ of‎ the‎ duly‎

constituted Military Commission with power to try, decide

and condemn.” Colepaugh v. Looney, 235 F.2d 429, 432 (10th

Cir. 1956), cert. denied, 352 U.S. 1014 (1957).

Put simply, the most well-known and important U.S.

military commissions in American history tried and convicted

the defendants of conspiracy. That history matters. See

Zivotofsky, 135 S. Ct. at 2091, slip op. at 20; Noel Canning,

134 S. Ct. at 2559-60, slip op. at 6-7. And that history is

directly on point here because conspiracy is not an

18

international law of war offense and because conspiracy is the

precise offense that Bahlul was charged with committing.

In response to all of this, the joint dissent says that there

is‎no‎“robust‎history.”‎Dissenting‎Op.‎at‎37.‎‎But‎to‎reiterate,‎

the two most important military commission trials in U.S.

history were trials for conspiracy, which is not an

international law of war offense. From the beginning of the

Nation, Congress and the President have gone well beyond

international law when enacting legislation making offenses

triable by military commission. To be sure, military

commissions were not employed by the United States during

the Korean War, the Vietnam War, or the Persian Gulf War.

See Hamdan v. Rumsfeld, 548 U.S. 557, 597 (2006) (plurality

opinion)‎(“The‎last‎time‎the‎U.S.‎Armed‎Forces‎used‎the‎law-

of-war military commission was‎during‎World‎War‎II.”).9 So

those wars do not supply us with any additional examples of

military commission trials, and thus do not tell us anything

one way or the other about trying conspiracy or other non-

international-law offenses before military commissions.

But in the two most significant U.S. wars of the last 200

years – the Civil War and World War II – as well as in the

current war against al Qaeda and its associated forces, the

9

In the Korean War, General Douglas MacArthur – who was

serving as the head of the U.S. and United Nations forces in Korea

– issued regulations specifying conspiracy to commit war crimes as

an offense triable by military commission. See U.N. COMMAND,

RULES OF CRIMINAL PROCEDURE FOR MILITARY COMMISSIONS OF

THE UNITED NATIONS COMMAND at Rule 4 (Oct. 22, 1950)

(establishing‎ that‎ “all‎ attempts‎ to‎ commit,‎ or‎ conspiracies‎ and‎

agreements to commit . . . violations of the laws and customs of

war”‎committed‎ during‎ the‎ Korean‎ War‎ were‎ to‎ be‎ punishable‎ by‎

U.N. military commission). But no U.S. military commissions

ultimately were convened during that war.

19

U.S. has employed military commissions. And the most

important military commission trials during those wars were

trials for conspiracy, which is not an international law of war

offense. That historical and contemporary practice cannot be

airbrushed out of the picture. Prosecuting conspiracy and

other non-international-law-of-war offenses is not at the

periphery of U.S military commission history and practice.

Prosecuting conspiracy and other non-international-law-of-

war offenses lies at the core of U.S. military commission

history and practice.

As the Supreme Court cautioned in Noel Canning, we

must‎ be‎ “reluctant to upset this traditional practice where

doing so would seriously shrink the authority that Presidents

have‎ believed‎ existed‎ and‎ have‎ exercised‎ for‎ so‎ long.”‎ Noel

Canning, 134 S. Ct. at 2573. Moreover, the Supreme Court

has explained that historical‎practice‎constitutes‎“an‎important‎

interpretive factor even when the nature or longevity of that

practice is subject to dispute, and even when that practice

began‎after‎the‎founding‎era.”‎Id. at 2560.

In short, the text and original understanding of the

Constitution; the structure of the Constitution; landmark

Supreme Court precedent; the deeply rooted historical

practice of the Legislative Branch, as seen in federal statutes;

and the longstanding practice of the Executive Branch, as

seen in U.S. military commission practice stretching back

over two centuries, all point decisively to the same

conclusion: The war powers clauses of Article I of the

Constitution do not impose international law as a constraint

on Congress’s‎ authority‎ to‎ establish‎ offenses‎ triable‎ by‎

military commission.

20

II

Bahlul also contends that Article III of the U.S.

Constitution confines U.S. military commissions to

international law of war offenses.

This‎ iteration‎ of‎ Bahlul’s argument begins with the

premise that Article III vests the judicial power in Article III

courts and requires crimes to be tried by jury, not before

military commissions.10 Based solely on the text of Article

III, Bahlul might have a point. But the Supreme Court has

long recognized an exception to Article III for military

commissions to try enemy war crimes. See Ex Parte Quirin,

317 U.S. 1, 38-45 (1942); see also Hamdan v. Rumsfeld, 548

U.S. 557 (2006).

Exceptions to Article III, including the exception for

military commissions, are established and interpreted in light

of historical practice. See Northern Pipeline Construction Co.

v. Marathon Pipe Line Co., 458 U.S. 50, 64 (1982) (plurality

opinion) (“[T]he literal command of Art. III . . . must be

interpreted in light of the historical context in which the

Constitution was written, and of the structural imperatives of

the‎ Constitution‎ as‎ a‎ whole.”);‎ Quirin 317‎ U.S.‎ at‎ 39‎ (“[I]t‎

was not the purpose or effect of § 2 of Article III, read in the

light of the common law, to enlarge the then existing right to

a‎ jury‎ trial.”);‎ see also Stern v. Marshall, 564 U.S. 462,

504-05 (2011)‎(Scalia,‎J.,‎concurring)‎(“[A]n Article III judge

is required in all federal adjudications, unless there is a firmly

established historical practice to the contrary.”);‎see generally

10

See U.S. CONST. art.‎ III,‎ §‎ 1‎ (“The‎ judicial‎ Power of the

United‎States,‎shall‎be‎vested‎.‎.‎.‎.”);‎id. §‎2,‎cl.‎3‎(“The‎Trial‎of‎all‎

Crimes, except in Cases of Impeachment, shall be by

Jury‎.‎.‎.‎.”).

21

Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091, slip op. at 20

(2015) (“In‎ separation-of-powers cases this Court has often

put significant weight upon historical‎ practice.”) (internal

quotation marks omitted); Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J.,

concurring)‎ (“Deeply‎ embedded‎ traditional‎ ways‎ of‎

conducting government cannot supplant the Constitution or

legislation, but they give meaning to the words of a text or

supply‎ them.”);‎ The Pocket Veto Case, 279 U.S. 655, 689

(1929)‎ (“Long‎ settled‎ and‎ established‎ practice‎ is‎ a‎

consideration of great weight in a proper interpretation of

constitutional provisions of this character.”);‎ McCulloch v.

Maryland,‎ 17‎ U.S.‎ 316,‎ 401‎ (1819)‎ (“[A]‎ doubtful‎ question,‎

one on which human reason may pause, and the human

judgment be suspended, in the decision of which the great

principles of liberty are not concerned, but the respective

powers of those who are equally the representatives of the

people, are to be adjusted; if not put at rest by the practice of

the government, ought to receive a considerable impression

from‎that‎practice.”).

In this context, if historical practice demonstrates that an

offense is triable by U.S. military commission, that history

resolves the Article III issue. As explained in Part I of this

opinion, the history of U.S. military commissions trying non-

international-law-of-war offenses is extensive and dates from

the beginning of the Republic. That historical practice

therefore amply demonstrates that Article III is not a barrier to

U.S. military commission trials of non-international-law-of-

war offenses, including the offense of conspiracy to commit

war crimes.

Notwithstanding that history, Bahlul says that Quirin

already considered the military commission exception to

22

Article III and limited the exception to international law of

war offenses.

Bahlul’s‎ reading‎ of‎ Quirin is incorrect. In Quirin, the

Nazi saboteur defendants claimed that they had a right under

Article III to be tried by jury in an Article III federal court and

therefore could not be tried by military commission. At some

length, the Quirin Court specifically considered and rejected

the defendants’‎Article‎III‎objection.‎‎See Quirin, 317 U.S. at

38-45.11 The Court explained that Article III did not “enlarge

the‎ then‎ existing‎ right‎ to‎ a‎ jury‎ trial”‎ beyond‎ the‎ right‎ as‎ it‎

existed at common law. Id. at 39. Because the common law

did not preclude trial by military commission for war crimes,

Article‎ III‎ “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

jury‎at‎common‎law‎be‎tried‎only‎in‎the‎civil‎courts.”‎‎ Id. at

40.

As explained above, in reaching its conclusion on the

Article III issue, the Quirin Court emphasized that Congress –

exercising its Article I powers – had made spying an offense

triable by military commission since the earliest days of the

Republic.‎ ‎ The‎ Court‎ stated‎ that‎ the‎ early‎ Congress’s‎

enactment‎ of‎ the‎ spying‎ statute‎ “must‎ be‎ regarded‎ as‎ a‎

contemporary‎construction”‎of‎Article‎III‎“as‎not‎foreclosing‎

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.‎ ‎ “Such‎ a‎ construction,”‎

the‎Court‎said,‎“is‎entitled‎to‎the‎greatest‎respect.”‎‎Id. at 41-

42.

11

The Court also referred to the Fifth and Sixth Amendments

when talking about Article III, but the Court analyzed them

together. For ease of reference, we will refer only to Article III.

23

The‎Supreme‎Court’s‎analysis in Quirin is instructive for

present purposes because, as noted above, the offense of

spying on which the Quirin Court relied to answer the Article

III objection was not (and is not) an offense under the

international law of war. It thus makes little sense to read

Quirin as barring military commission trials of non-

international-law-of-war offenses when Quirin, in rejecting a

jury trial objection to military commissions, expressly relied

on a longstanding statute making spying – a non-

international-law-of-war offense – triable by military

commission.

In addition, as previously discussed, nothing about the

Court’s‎ reasoning‎ in‎ Quirin rested on whether the offense

tried by a military commission was an international law of

war offense. The Court never suggested that military

commissions are constitutionally permitted only for

international law of war offenses. Nor has the Court ever said

anything like that in its several later military commission

cases. One would have expected the Court to say as much if

the Court actually thought as much.

To be sure, the Quirin Court referred to international law

authorities. But as noted above, the Court discussed those

authorities‎ in‎ part‎ because‎ an‎ offense’s‎ status‎ as‎ an‎

international law offense is sufficient but not necessary to

make an offense triable by military commission under 10

U.S.C.‎ §‎ 821,‎ the‎ statute‎ that‎ used‎ the‎ broad‎ term‎ “law‎ of‎

war”‎to‎define‎offenses‎triable‎by‎military‎commission.‎

In short, Article III does not limit U.S. military

commissions to international law of war offenses or otherwise

24

foreclose trial of the offense of conspiracy to commit war

crimes before U.S. military commissions.12

All of that said, the Constitution does not grant Congress

unlimited authority to designate crimes as triable by military

commission. At oral argument, the Government stated that

the charges must at least involve an enemy combatant who

committed a proscribed act during or in relation to hostilities

against the United States. See Tr. of Oral Arg. at 37. In

general, if an offense is an international law of war offense or

has historically been tried by U.S. military commission, that is

sufficient to‎ uphold‎ Congress’s‎ constitutional‎ authority‎ to‎

make the offense triable by military commission. See

generally Quirin, 317 U.S. at 24-48. As Winthrop explained,

the war crimes triable by U.S. military commission are

“derived‎ from‎ International‎ Law,‎ supplemented‎ by‎ acts‎ and‎

orders‎of‎the‎military‎power‎and‎a‎few‎legislative‎provisions.”

WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 773

(rev. 2d ed. 1920).

But is one of those conditions necessary? In other words,

what if an offense is neither an international law of war

offense nor historically rooted in U.S. military commission

practice? Consider a hypothetical new statute that makes

cyber-attacks by enemy forces a war crime triable by military

commission. Quirin stated‎ that‎ Article‎ III‎ does‎ “not‎ restrict‎

whatever authority was conferred by the Constitution to try

offenses‎against‎the‎law‎of‎war‎by‎military‎commission,”‎and‎

does‎not‎bar‎“the‎practice‎of‎trying,‎before‎military‎tribunals‎

without a jury, offenses committed by enemy belligerents

12

Bahlul also has raised equal protection and First

Amendment challenges to his conviction. Those arguments are

frivolous, for reasons explained in Al Bahlul v. United States, 767

F.3d 1, 75-76 (D.C. Cir. 2014) (en banc) (separate opinion of

Kavanaugh, J.).

25

against‎the‎law‎of‎war.”‎‎Quirin, 317 U.S. at 45, 41. Perhaps

that language suggests that Article III permits what Article I

authorizes with respect to which enemy war crimes may be

tried by U.S. military commission. But we need not answer

that hypothetical in this case and need not define with

precision the outer limits of the Constitution in this context,

other than to say that international law is not such a limit.

Wherever one might ultimately draw the outer boundaries of

Congress’s‎ authority‎ to‎ establish‎ offenses‎ triable‎ by‎ military‎

commission, the historically rooted offense of conspiracy to

commit war crimes is well within those limits. An enemy of

the United States who engages in a conspiracy to commit war

crimes – in‎Bahlul’s‎case,‎by‎plotting‎with‎Osama‎bin‎Laden‎

to murder thousands of American civilians – may be tried by

a U.S. military commission for conspiracy to commit war

crimes.

III

In light of the importance of this case, and the serious and

passionate arguments advanced by the joint dissent, we close

with a few additional responses to points made by the joint

dissent.

First, in reaching its conclusion, the joint dissent relies in

part on Hamdan v. Rumsfeld, 548 U.S. 557 (2006). That

reliance is misplaced. As relevant here, Hamdan was a

statutory‎ case‎ interpreting‎ the‎ phrase‎ “law‎ of‎ war”‎ in‎ 10‎

U.S.C. § 821. Nowhere did the Supreme Court ever say (or

even hint) that the United States Constitution imposed

international law as a limit on what offenses may be tried by

U.S.‎ military‎ commissions.‎ The‎ joint‎ dissent’s‎ citations‎ to‎

Hamdan therefore do not support its constitutional position.

26

In fact, the Hamdan decision and its aftermath only

highlight the extraordinary nature‎ of‎ the‎ joint‎ dissent’s‎

position. In Hamdan, the Court confronted but ultimately did

not resolve the question of whether the relevant statute in

effect at the time, 10 U.S.C. § 821, barred military

commission trials of alleged war criminals for conspiracy.

But four of the Justices in the majority expressly invited

Congress to clarify the scope of military commission power.

Hamdan, 548 U.S. at 636 (Breyer, J., concurring, joined by

Kennedy, Souter, and Ginsburg, JJ.); id. at 653 (Kennedy, J.,

concurring in part, joined in relevant part by Souter,

Ginsburg,‎ and‎ Breyer,‎ JJ.).‎ ‎ ‎ In‎ response‎ to‎ the‎ Justices’‎

invitation, Congress and the President promptly enacted new

legislation to make crystal clear that conspiracy is an offense

triable by military commission. Military Commissions Act of

2006, Pub. L. No. 109-366, 120 Stat. 2600, 2625, 2630

(expressly authorizing trials before military commissions for

conspiracy offenses).

A decade after Hamdan, Bahlul and the joint dissent have

now come back with a novel and extraordinary constitutional

interpretation that would thwart the considered wartime

decisions of two Congresses and two Presidents – decisions

invited by the Supreme Court in Hamdan – to authorize

military commission trials of conspiracy offenses. Under the

joint‎dissent’s‎theory,‎the‎congressional‎action‎invited‎by‎the‎

Supreme Court was all a waste of time because U.S. military

commissions are constitutionally barred from trying the

offense of conspiracy, regardless of statutory authorization.

But in Hamdan, not a single Justice hinted at a lurking

constitutional problem with trying conspiracy offenses before

military commissions (nor did Hamdan himself in his

arguments to the Supreme Court, either directly or through a

constitutional avoidance argument). To be sure, the Hamdan

decision does not formally preclude the Supreme Court from

27

now returning to the scene and finding a previously missed

constitutional problem with trying conspiracy offenses by

military commission. But in this wartime context, one should

not lightly assume that the Supreme Court expressly

encouraged the political branches to launch into an utterly

meaningless, decade-long exercise.

Second,‎the‎joint‎dissent‎says:‎“It‎is‎not‎international‎law,‎

however, that constrains Congress’s‎ authority‎ here‎ – it is

Article‎III.”‎‎Dissenting‎Op.‎at‎46.‎That‎sentence‎glides‎over‎

the key question. The question is whether Article III (or

Article I) incorporates international law as a constraint on

U.S. military commissions. The joint dissent says yes. But

the constitutional text and structure, Supreme Court

precedents, and deeply rooted U.S. history tell us that the

answer is no.

Of course, the consistent U.S. history is the consistent

U.S. history for a reason. As explained above, the

consequences for the United States of judicially incorporating

international law into the U.S. Constitution would be deeply

problematic and run afoul of our most fundamental

constitutional principles and traditions. International law

often embodies a majority or consensus view of nations.

Does the United States Constitution really allow foreign

nations, through the guise of international law, to set

constitutional limits enforceable in U.S. courts against the

U.S.‎ war‎ effort?‎ ‎ Under‎ Bahlul’s‎ argument,‎ and‎ under the

theory advanced by the joint dissent, the answer would be yes.

We think not. We see no basis in U.S. law, precedent, or

history – not to mention, common sense – for that position.

To‎ paraphrase‎ Justice‎ Jackson,‎ the‎ Constitution‎ is‎ not‎ “a‎

suicide pact.”‎‎Terminiello v. Chicago, 337 U.S. 1, 37 (1949)

(Jackson, J., dissenting).

28

To be sure, the Judiciary plays a critical role in enforcing

constitutional and statutory limits in justiciable wartime cases,

and this Court must not hesitate (and has not hesitated) in

doing so, even when the consequences are significant. See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952); Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir.

2014) (en banc) (Ex Post Facto Clause bars Congress and the

President from making material support for terrorism a war

crime that can be retroactively prosecuted before a military

commission); Hamdan v. United States, 696 F.3d 1238 (D.C.

Cir. 2012) (same, via constitutional avoidance doctrine). But

in this case, neither Article I nor Article III confines Congress

to international law of war offenses when Congress

establishes war crimes triable by military commission.

To be clear, we take no position on the policy question of

whether the U.S. Government should use military

commissions to try the offense of conspiracy or other non-

international-law-of-war offenses, or indeed whether the

Government should use military commissions at all. That

policy decision belongs first to Congress and the President in

the legislative process, and then to the President in the

exercise of his or her Commander-in-Chief power. Likewise,

we take no position on the general question of when and how

Congress and the President should weigh international law

principles in making those decisions. International law is

important, and the political branches have good reason to

adhere to international law when determining what offenses

will be tried before U.S. military commissions. But

international law has its own enforcement mechanisms. The

federal courts are not roving enforcers of international law.

And the federal courts are not empowered to smuggle

international law into the U.S. Constitution and then wield it

as a club against Congress and the President in wartime.

29

Third, the joint dissent seeks to explain away the history

and practice of U.S. military commissions. But that effort is

entirely unpersuasive.

In the face of the deeply rooted U.S. history and practice

of trying conspiracy offenses by military commission, the

joint dissent had two options. It could discount the

importance of history to the constitutional analysis, and try to

explain that the constitutional text and structure matter most

here. The joint dissent did not choose that approach, no doubt

because the constitutional text and structure also show what

the history shows: that international law is not a constraint on

Congress when Congress determines which offenses may be

tried by military commission.

Alternatively, the joint dissent could attack the history

head-on on the theory that the history does not actually show

what it seems to show. That is the route that the joint dissent

chose. But it does not work. Consider all of the contortions

the joint dissent has to make in attempting to wriggle out of

the history. First, faced with the historical fact that Congress

since the Founding has consistently made non-international-

law offenses triable by military commission, the joint dissent

unconvincingly posits that those Congresses all mistakenly

believed that those offenses actually were international law

offenses (even though they were not and even though there is

no persuasive evidence that Congress thought they were). See

Dissenting Op. at 34-35. Second, faced with the historical

fact‎that‎the‎Executive‎Branch’s‎two‎most‎important military

commissions in the history of the country were trials of

conspiracy offenses, which are not international law offenses,

the joint dissent implausibly suggests that the Lincoln case

was not really a conspiracy case (even though it plainly was),

and it notes that the conspiracy charges against the eight

Nazis at issue in Quirin were never directly reviewed by a

30

court (even though the relevant point is that the military

commission trial of the Nazis for conspiracy remains a central

part of Executive Branch historical practice). See id. at 37-39,

42-44. Third, faced with the fact that the Supreme Court

relied on a non-international-law offense, spying, in its

landmark Quirin decision upholding military commissions,

the joint dissent seeks to sweep that inconvenient snippet

under the rug by suggesting that the Court mistakenly

believed that spying was an international law offense (even

though there is no persuasive evidence that the Court actually

thought as much). See id. at 25-26.

The bottom line here is that the history matters, the

history is overwhelming, and the history devastates the joint

dissent’s‎position.‎

Fourth, in justifying its position, the joint dissent posits a

hypothetical of non-U.S.-citizens living together in an

apartment in Virginia with pipe bombs, al Qaeda propaganda,

and a map of the Washington Metro. The joint dissent says it

would‎be‎“dangerous”‎to‎apprehend‎such‎a‎group‎and‎then‎try‎

them for conspiracy before a military commission.

Dissenting Op. at 63-64. We are mystified by the joint

dissent’s‎apparent‎belief‎that‎this‎is‎a‎helpful‎hypothetical‎for‎

its position. We take it that the point of the hypothetical is to

suggest that military commissions should not be used to try

non-citizen enemy terrorists who are (i) captured in the

United States (ii) before they commit their planned attacks.

Of course, the current war has no such neat geographical

boundaries. And neither did World War II, for that matter.

After all, the Nazi saboteurs were captured in the United

States before their planned attacks on U.S. facilities. They

were then prosecuted before U.S. military commissions. And

if Mohamad Atta and his fellow attackers had been captured

on the night of September 10, 2001, in Portland, Maine, and

31

elsewhere, and then tried before congressionally authorized

U.S. military commissions for conspiracy, we certainly would

not‎have‎characterized‎that‎scenario‎as‎“dangerous.”

Fifth, the joint dissent insists that the mission of the

military is to defeat enemies on the battlefield, not to punish

enemy wrongdoers. See Dissenting Op. at 49-50. The

dissent’s‎effort‎to‎define‎U.S.‎military‎strategy‎in‎that‎way‎is‎

both legally and factually flawed. As the Supreme Court has

long recognized, including in landmark cases such as Hamdi,

war is waged not only by killing enemy combatants, but also

by surveilling, capturing, and detaining enemy forces, and by

trying unlawful enemy combatants for war crimes. And in the

current war, the modus operandi of the enemy is to target

citizens; to frighten, unsettle, disrupt, and demoralize; to

make normal peaceful life impossible and carnage routine. In

response‎ to‎ the‎ enemy’s‎ tactics,‎ two‎ Congresses‎ and‎ two‎

Presidents – like their predecessors throughout U.S. history –

have determined that employing military commissions to try

unlawful enemy combatants for their war crimes is an

important part of the overall war effort. The Constitution

assigns that question of military strategy to Congress and the

President, not to the joint dissenters.

Sixth, and relatedly, in seeking to minimize the

consequences of its theory, the joint dissent suggests that

military commissions are not essential to the U.S. war effort

because the U.S. Government can simply try al Qaeda war

criminals in federal courts, including for conspiracy to

commit war crimes. See, e.g., Dissenting Op. at 1, 47-48.

With all respect, the joint dissent has no business making such

a statement. It has no basis to express such confidence and no

relevant expertise on that question of wartime strategy.

Unlike the joint dissenters, Presidents Bush and Obama, as

well as the two Congresses in 2006 and 2009, determined that

32

the ordinary federal court process is not suitable for trying

certain enemy war criminals. The only question for us as

judges is one of law: whether the U.S. Constitution permits

that policy choice by Congress and the President. If the

answer were no, then we would enforce the Constitution. Cf.

Hamdi v. Rumsfeld, 542 U.S. 507, 577 (2004) (Scalia, J.,

dissenting). But here, the answer is yes.

***

We‎ vote‎ to‎ affirm‎ Bahlul’s‎ conviction‎ for‎ conspiracy

to commit war crimes.

MILLETT, Circuit Judge, concurring: “[T]here is no

liberty if the power of judging be not separated from the

Legislative and Executive powers.” THE FEDERALIST NO. 78,

at 425 (Alexander Hamilton) (E.H. Scott ed. 1898) (citation

omitted). Under our system of separated powers, that means

that the Judicial Branch bears both distinct responsibilities

and distinct constraints. In particular, the Judicial Branch

must declare and enforce the Constitution’s limitations

against the actions of the Political Branches in cases when

that is necessary. And we must not do so when it is not

necessary. “After all, a longstanding principle of judicial

restraint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.” 1

Pursuant to the Military Commissions Act of 2006

(“2006 Act”), Pub. L. No. 109-366, 120 Stat. 2600, a military

commission found petitioner Hamza Ahmad Suliman al

Bahlul guilty of conspiracy to violate the law of war, in

violation of 10 U.S.C. § 950v(b)(28). The parties framed for

our review the important constitutional questions of whether a

conviction for inchoate conspiracy by an Article I military

commission either exceeds Congress’s legislative authority

under Article I or violates Article III’s assignment of the

judicial power to the federal courts.

I would decline to resolve those constitutional questions

because they are not directly presented by this case. First,

Bahlul forfeited those challenges by failing to raise them

1

Camreta v. Greene, 563 U.S. 692, 705 (2011) (internal quotation

marks and citation omitted); see also Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 346–347 (1936) (Brandeis, J.,

concurring) (explaining that courts should not “anticipate a question

of constitutional law in advance of the necessity of deciding it”;

neither should they “formulate a rule of constitutional law broader

than is required by the precise facts to which it is to be applied”).

2

before the military commission, making plain-error review

appropriate.

Second, whatever broad constitutional issues may lurk

within the 2006 Act, Bahlul challenges only his judgment of

conviction, and thus the application of the 2006 Act’s

conspiracy provision to him in this prosecution. See Oral

Arg. Tr. 6; Pet. Br. 57. And the conspiracy for which Bahlul

was convicted rested on proof of more statutory elements than

ordinary inchoate conspiracy requires, including intent to

further the commission of war crimes, Pet. Supp. App. 137,

and proof of an overt act in furtherance of a violation of the

law of war, id. In addition, the conspiracy’s objects included

completed war crimes. Id.

Third, the specific findings made by the commission, on

which Bahlul’s conviction rests, largely eliminated the gap

between his conviction and those types of conspiracies that

are indisputably triable by military commission. Whatever

remaining distance Congress might have closed in an exercise

of its power to define and punish violations of the law of

nations does not, in my view, amount to plain constitutional

error.

Finally, I join the court’s determination that Bahlul’s

First Amendment and Equal Protection claims are

foreclosed. 2

2

I refer to the defendant as Bahlul, rather than al Bahlul, because

that is the appellation employed by his counsel on his behalf.

3

I

A

This case concerns Bahlul’s conviction by a military

commission of conspiracy to violate the law of war, as that

offense is defined in 10 U.S.C. § 950v(b)(28). A person

commits conspiracy under Section 950v(b)(28) if he

“conspires to commit one or more substantive offenses triable

by military commission under this chapter, and * * *

knowingly does any overt act to effect the object of the

conspiracy.” 10 U.S.C. § 950v(b)(28). The substantive

offenses triable by military commission under the chapter

include murder of protected persons, attacking civilians,

attacking civilian objects, murder in violation of the law of

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

terrorism, and providing material support for terrorism. See

id. § 950v(b)(1), (2), (3), (15), (16), (24) & (25). The 2006

Act further provides that conspiracy “shall be punished, if

death results to one or more of the victims, by death or other

such punishment as a military commission under this chapter

may direct, and, if death does not result to any of the victims,

by such punishment, other than death, as a military

commission under this chapter may direct.” Id. § 950v(b).

In what is known as the “Define and Punish Clause,”

Article I of the Constitution empowers Congress to “define

and punish * * * Offences against the Law of Nations.” U.S.

CONST., Art. I, § 8, cl. 10. The Supreme Court has explained

that “[o]ffences * * * against the law of nations, cannot, with

any accuracy, be said to be completely ascertained and

defined in any public code recognized by the common

consent of nations.” United States v. Smith, 18 U.S. 153, 158

(1820). Thus, “there is a peculiar fitness in giving the power

to define as well as to punish” to Congress, “and there is not

4

the slightest reason to doubt that this consideration had very

great weight in producing the phraseology in question.” Id.;

see Ex parte Quirin, 317 U.S. 1, 28 (1942).

At the same time, Congress’s power to punish offenses

by military commission is constrained by the Constitution’s

Judicial Power Clause, Art. III, § 2, cl. 1. That Clause

provides that “[t]he judicial Power shall extend to 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.” Id. Those “Cases” and

“Controversies” include criminal prosecutions. See United

States ex rel. Toth v. Quarles, 350 U.S. 11, 15 (1987). If a

suit falls within the judicial power, then “the responsibility for

deciding that suit rests with Article III judges in Article III

courts,” and the Constitution forbids Congress to assign its

resolution to another tribunal. See Stern v. Marshall, 564

U.S. 462, 484 (2011).

B

While our prior en banc opinion catalogued the factual

background of this case, see Bahlul v. United States (Bahlul

I), 767 F.3d 1, 5–8 (D.C. Cir. 2014) (en banc), portions of that

factual history help to frame the legal questions that Bahlul

presents.

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

traveled to Afghanistan to join al Qaeda, and there he met

Usama bin Laden. On October 12, 2000, al Qaeda attacked

the USS Cole, killing seventeen American sailors and injuring

thirty-nine others. Bahlul created a recruiting video for al

Qaeda celebrating that attack, which he considered one of the

best recruiting videos al Qaeda had produced. Pet. App. 134;

see Bahlul I, 767 F.3d at 5.

5

Bin Laden subsequently appointed Bahlul his personal

assistant and secretary for public relations. Bahlul actively

prepared for al Qaeda’s attacks on the United States on

September 11, 2001. He arranged the loyalty oaths and

prepared “martyr wills” for Mohamed Atta and Ziad al Jarrah,

two of the hijackers who flew planes into the World Trade

Center. Those “martyr wills” were propaganda declarations

made in preparation for the attack and in which Atta and al

Jarrah documented their and al Qaeda’s roles in the atrocities.

Bahlul also provided research to bin Laden regarding the

economic effects of the attacks. In addition, Bahlul

volunteered to participate in the 9/11 attacks himself, but bin

Laden thought he was too important to lose. Just before 9/11,

Bahlul evacuated al Qaeda’s headquarters in Afghanistan with

bin Laden and other senior al Qaeda leaders. Bahlul I, 767

F.3d at 6. After the attacks, Bahlul fled to Pakistan, where he

was captured and turned over to the United States military.

Id. at 6.

As relevant here, the United States charged Bahlul under

the 2006 Act with conspiracy to commit war crimes. See 10

U.S.C. § 950v(b)(28). Bahlul was tried before a military

commission convened at Guantanamo Bay. During the trial,

Bahlul “flatly refused to participate in the military

commission proceedings and instructed his trial counsel not to

present a substantive defense.” Bahlul I, 767 F.3d at 10. At

no time did he raise any argument that Congress lacked the

constitutional power to authorize a trial by military

commission for conspiracy, or that in doing so, Congress ran

afoul of the Define and Punish Clause or the Judicial Power

Clause.

Before its deliberations, the commission was instructed

that, to convict Bahlul of conspiracy under the 2006 Act, it

must find “beyond a reasonable doubt” that Bahlul “entered

6

into an agreement” with other members of al Qaeda to

commit a substantive offense under the Act, “knew the

unlawful purpose of the agreement and joined in it willingly,”

and “knowingly committed” an overt act to bring about one of

the objects of the agreement. Pet. Supp. App. 137. The

military commission subsequently found Bahlul guilty of

conspiracy under 10 U.S.C. § 950v(b)(28). In so doing, the

commission specifically found that Bahlul committed ten

overt acts as part of the conspiracy:

1. Traveled to Afghanistan with the purpose and intent of

joining al Qaeda;

2. Met with Saif al’Adl, the head of the al Qaeda

Security Committee, as a step toward joining the al

Qaeda organization;

3. Underwent military-type training at an al Qaeda

sponsored training camp then located in Afghanistan;

4. Pledged fealty, or “bayat,” to the leader of al Qaeda,

Usama bin Laden, joined al Qaeda, and provided

personal services in support of al Qaeda;

5. Prepared and assisted in the preparation of various

propaganda products, including the video “The

Destruction of the American Destroyer U.S.S. Cole,”

to solicit material support for al Qaeda, to recruit and

indoctrinate personnel to the organization and

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

persons to commit Terrorism;

6. Acted as personal secretary and media secretary of

Usama bin Laden in support of al Qaeda;

7. Arranged for Muhammed Atta, also known as Abu

Abdul Rahman al Masri, and Zaiad al Jarrah, also

known as Abu al Qa’qa al Lubnani, to pledge fealty or

“bayat,” to Usama bin Laden;

8. Prepared the propaganda declarations styled as martyr

wills for two of the 9/11 hijackers, Muhammed Atta

7

and Ziad al Jarrah, in preparation for the acts of

terrorism perpetrated by them in the United States on

September 11, 2001;

9. At the direction of Usama bin Laden, researched the

economic effects of the September 11, 2001, attacks

on the United States, and provided the results to

Usama bin Laden; and

10. Operated and maintained data processing equipment

and media communications equipment for the benefit

of Usama bin Laden and other members of the al

Qaeda leadership.

Pet. App. at 116–117.

The commission also found Bahlul guilty of conspiracy

to commit seven charged object offenses: (i) murder of

protected persons, (ii) attacking civilians, (iii) attacking

civilian objects, (iv) murder in violation of the law of war, (v)

destruction of property in violation of the law of war, (vi)

terrorism, and (vii) providing material support for terrorism.

Pet. App. 115; see 10 U.S.C. § 950(v)(b)(1), (3), (15), (16),

(24) & (25). The military commission sentenced Bahlul to

life imprisonment. Pet. App. 86.

II

A

Before wading into any constitutional dispute, courts

must first decide how deeply they should go—that is, which

standard of review should apply. Those review standards are

critical components of our justice system because they

promote fairness, stability, and finality within the judicial

process, and they give effect to the relative expertise of both

the appellate court and the tribunals whose judgments are

under review. See Puckett v. United States, 556 U.S. 129, 134

8

(2009); United States v. Frady, 456 U.S. 152, 163 (1982)

(Standards of review “encourage all trial participants to seek a

fair and accurate trial the first time around[.]”).

Ordinarily, questions of constitutional law in criminal

cases are decided de novo, and we plunge into plenary review.

See, e.g., United States v. Straker, 800 F.3d 570, 629 (D.C.

Cir. 2015). But this case is not ordinary. Bahlul seeks to

overturn his conviction on the basis of constitutional

arguments that he could have made before the military

commission, but did not. Bahlul nonetheless insists that we

must consider his challenges de novo. See Pet. Br. 41.

Bahlul is wrong, in my view. Appellate courts are

supposed to be courts of review, not first view. See

Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430

(2012). And “‘[n]o procedural principle is more familiar

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

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

failure to make timely assertion of the right before a tribunal

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

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

321 U.S. 414, 444 (1944)); United States v. Baucum, 80 F.3d

539, 541 (D.C. Cir. 1996) (noting “established Supreme Court

precedent declining to address constitutional questions not put

in issue by the parties”); see also, e.g., United States v. David,

96 F.3d 1477, 1482 (D.C. Cir. 1996) (criminal defendant

waived constitutional challenge under the Commerce Clause).

In a civil case, Bahlul’s forfeiture would be fatal; we

would not review his newly raised claims at all. See

Nemariam v. Federal Democratic Republic of Ethiopia, 491

F.3d 470, 483 (D.C. Cir. 2007) (“[A]bsent exceptional

circumstances, the court of appeals is not a forum in which a

litigant can present legal theories that it neglected to raise in a

9

timely manner in proceedings below.”) (internal quotation

marks omitted). Criminal cases, however, are different.

Typically, when a criminal defendant forfeits a challenge,

even a constitutional one, an appellate court will still review

the claim for “plain error.” FED. R. CRIM. P. 52(b); see, e.g.,

United States v. Cotton, 535 U.S. 625, 631–632 (2002). A

forfeited error warrants reversal as “plain error” only if the

error was “clear” or “obvious” at the time it was made.

Olano, 507 U.S. at 734. Even then, the decision whether to

correct the forfeited error lies “within the sound discretion of

the court of appeals.” Id. at 732. Courts should not exercise

that discretion unless the error “seriously affect[ed] the

fairness, integrity or public reputation of judicial

proceedings.” United States v. Young, 470 U.S. 1, 15 (1985);

see also FED. R. CRIM. P. 52(b) (“A plain error that affects

substantial rights may be considered even though it was not

brought to the court’s attention.”) (emphasis added).

While my colleagues believe that the constitutional

importance of the issues presented and their implications

warrant a discretionary exercise of de novo review, see

Wilkins Concurring Op. at 1; Joint Dissent at 4–9; see also

Kavanaugh Concurring Op. at 3 n.1, limiting appellate review

to plain errors when a criminal defendant fails to object at

trial serves a vital function within the criminal justice system.

The plain-error rule “induce[s] the timely raising of claims

and objections,” which in turn affords the trial court the

opportunity both “to determine the relevant facts and

adjudicate the dispute” in the first instance and, if warranted,

to “correct or avoid the mistake so that it cannot possibly

affect the ultimate outcome.” Puckett, 556 U.S. at 134.

The contemporaneous-objection rule also prevents a

defendant from “‘sandbagging’ the court—remaining silent

about his objection and belatedly raising the error only if the

10

case does not conclude in his favor,” Puckett, 556 U.S. at

134—which is exactly what Bahlul is doing.

“[E]ncourag[ing] all trial participants” instead “to seek a fair

and accurate trial the first time around” promotes fairness to

the court, to all of the parties, Frady, 456 U.S. at 163, and to

the public, as well as stability in the law. See generally Exxon

Shipping Co. v. Baker, 554 U.S. 471, 487 n.6 (2008)

(“[W]aiver and forfeiture rules * * * ensure that parties can

determine when an issue is out of the case, and that litigation

remains, to the extent possible, an orderly progression.”).

As our prior en banc opinion explained, Bahlul “flatly

refused to participate in the military commission

proceedings,” and to the extent that he objected at all to his

trial, the objection “was couched entirely in political and

religious terms.” Bahlul I, 767 F.3d at 10; see id. at 7

(“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 declared that he was a

“prisoner[] of war and legal combatant[] based on [his]

religion,” rejected the United States’ “earthly laws and

international earthly laws,” questioned “how can there be a

tribunal, a court, a complete court, and a fair court as long as

they do not—when they do not accept our rules, our laws,”

and then concluded that “there is going to be the tribunal of

God on the day of judgments.” Pet. App. 109–112.

That generic diatribe against the proceedings writ large

did not preserve the specific constitutional challenges that

Bahlul now presses. His complaints were far “too general to

have alerted the trial court to the substance of [his] point,”

United States v. Bolla, 346 F.3d 1148, 1152 (D.C. Cir. 2003)

(Roberts, J.) (quotation marks omitted), or to have given the

court or opposing counsel any notice of the constitutional

11

character of his claim, see also United States v. Love, 593

F.3d 1, 11 (D.C. Cir. 2010) (defendant’s “general objection

* * * was insufficient to preserve his arguments for appeal”);

United States v. Breedlove, 204 F.3d 267, 270 (D.C. Cir.

2000) (an objection “couched in terms too general” to have

put the trial court on notice of “the substance of the [claim]”

was not preserved).

To be sure, I do not believe a defendant must cite to any

particular case or style arguments in a particular way to

sufficiently preserve a claim. See United States v. Rashad,

396 F.3d 398, 401 (D.C. Cir. 2005). All Bahlul had to do was

“inform the court and opposing counsel of the ruling he

want[ed] the court to make and the ground for so doing.” Id.

But Bahlul failed to do even that. He did not so much as

mention the Constitution. He just categorically disdained the

trial process. Accordingly, I would hold Bahlul to the same

standard that courts apply every day to other criminal

defendants who fail to preserve claims, and would review his

new constitutional challenges only for plain error.

B

To evade the consequences of his forfeiture, Bahlul tries

to package his Article III claim as a challenge to the military

commission’s subject-matter jurisdiction, presumably because

“defects in subject-matter jurisdiction require correction

regardless of whether the error was raised” below. Cotton,

535 U.S. at 630. That tactic fails. This Court has already

held that the 2006 Act “explicitly confers jurisdiction on

military commissions to try the charged offenses.” Bahlul I,

767 F.3d at 10 n.6. There thus should be no question that the

military commission acted within its statutorily assigned

jurisdiction.

12

What Bahlul’s challenge really goes to is whether, in

authorizing a law-of-war military commission to decide the

conspiracy charge, Congress exceeded its constitutional

authority under either Article I’s Define and Punish Clause or

Article III’s Judicial Power Clause. In general, if a suit falls

within the judicial power, then “the responsibility for deciding

that suit rests with Article III judges in Article III courts.”

Stern, 564 U.S. at 484. But an exception exists for certain

criminal prosecutions—specifically, criminal violations of the

international laws of war—which constitutionally may be

tried before military commissions. See Johnson v.

Eisentrager, 339 U.S. 763, 786 (1950) (“The jurisdiction of

military authorities, during or following hostilities, to punish

those guilty of offenses against the laws of war is long-

established.”).

Bahlul argues that his prosecution for conspiracy before

the military commission did not fall within any such

exception because it did not charge a violation of the

international law of war. And because of that, Bahlul says, he

was constitutionally entitled to have the charges against him

brought before an Article III court.

The problem for Bahlul’s effort to frame that argument

as jurisdictional is that “[e]ven the unconstitutionality of the

statute under which the proceeding is brought does not oust a

court of jurisdiction.” United States v. Williams, 341 U.S. 58,

65 (1951). As long as the military commission “exercises its

power under a presumptively valid federal statute, it acts

within its subject-matter jurisdiction[.]” Baucum, 80 F.3d at

540. Indeed, in this Court’s previous en banc decision, we

reviewed another separation-of-powers claim pressed by

Bahlul—his Ex Post Facto Clause claim—for plain error,

even though that challenge concerned the constitutionality of

the 2006 Act, and thus the power of the United States to

13

proceed against him. See Bahlul I, 767 F.3d at 10 & n.6; see

also Carmell v. Texas, 529 U.S. 513, 531 n.21 (2000) (the Ex

Post Facto Clause is in part “aimed at * * * reinforcing the

separation of powers”).

Bahlul’s claims here have no more jurisdictional aspect

than did his ex post facto claims. His Define and Punish

Clause argument is a challenge to the constitutionality of the

2006 Act. So too is Bahlul’s Judicial Power Clause

argument: “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.” Bahlul v.

United States (Bahlul II), 792 F.3d 1, 31 (D.C. Cir. 2015)

(Henderson, J., dissenting). To hold otherwise would mean

that “a court would be required to raise [a Judicial Power

Clause challenge] sua sponte each time it reviews a decision

of a non-Article III tribunal,” even if the parties do not contest

that issue. Id. at 32; see generally Baucum, 80 F.3d at 541

(Courts have “an obligation to address jurisdictional questions

sua sponte.”).

In short, Bahlul’s “belated assertion of a constitutional

defect” does “not work to divest” the military commission of

its jurisdiction to try him. Baucum, 80 F.3d at 541.

Accordingly, his constitutional challenge to Congress’s

authorization of his conspiracy prosecution before a military

commission should be subject to the same contemporaneous-

objection requirement as any other constitutional claim.

C

1

After that long preface, I arrive at the heart of Bahlul’s

argument for de novo review: He contends that a criminal

defendant can never forfeit an Article III structural claim.

14

Specifically, Bahlul argues that the Judicial Power Clause of

Article III prohibits Congress from assigning the trial of

criminal conspiracies to a non-Article III tribunal, and that

such a structural Article III claim is not subject to plain-error

review.

For support, Bahlul points to the Supreme Court’s

decision in Commodity Futures Trading Commission v.

Schor, 478 U.S. 833 (1986). In that case, Schor challenged

the Commodity Futures Trading Commission’s jurisdiction

over certain common-law counterclaims in civil reparations

proceedings. Schor argued that Article III required that those

traditionally common-law claims be decided by the Judicial

Branch, not by an Executive Branch tribunal. Id. at 835–836.

While acknowledging that “Schor indisputably waived any

right he may have possessed [by] expressly demand[ing] that

[the other party] proceed on its counterclaim” before the

Commission, the Supreme Court addressed the merits of his

structural challenge de novo. Id. at 849–851. In so doing, the

Supreme Court explained that “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[.]” Id. at 850 (quotation marks omitted, alterations in

original). When that “structural principle is implicated in a

given case,” the Court added, traditional rules “of consent and

waiver cannot be dispositive” because those Article III

limitations “serve institutional interests that the parties cannot

be expected to protect.” Id. at 850–851 (quotation marks,

citations, and alterations omitted); see also Freytag v.

Commissioner of Internal Revenue, 501 U.S. 868, 880 (1991)

(“Neither Congress nor the Executive can agree to waive

* * * structural protection[s].”); Wellness Int’l Network, Ltd.

v. Sharif, 135 S. Ct. 1932, 1945 n.10 (2015) (“What Schor

15

forbids is using consent to excuse an actual violation of

Article III.”).

Bahlul takes those passages to mean that an Article III

structural claim can never be forfeited, and that we are thus

obligated to review his claim de novo. That overreads Schor.

What the Supreme Court said is that “notions of consent and

waiver cannot be dispositive.” Schor, 478 U.S. at 851

(emphasis added). At most, that means that appellate courts

have discretion to hear unpreserved Article III structural

claims de novo in appropriate cases, not that they are

obligated to do so. Subsequent Supreme Court precedent

proves that point.

To begin with, in Plaut v. Spendthrift Farm, Inc., 514

U.S. 211 (1995), the Supreme Court held that the Securities

Exchange Act’s requirement that federal courts reopen certain

final judgments in private civil actions violated Article III

because the Article III judicial power is the power to decide

cases conclusively. Id. at 213, 218. The government had

invoked Schor’s non-waiver language in defense of the

statute, reasoning that if the finality of federal court

judgments implicated Article III, then res judicata would not

be waivable either. Id. at 231. The Supreme Court gave no

quarter to that reading of Schor: “The proposition that legal

defenses based upon doctrines central to the courts’ structural

independence can never be waived simply does not accord

with our cases.” Id. What Schor meant, the Supreme Court

explained, was that a court could still “choose to consider his

Article III challenge,” notwithstanding a litigant’s consent to

an alternative tribunal, because when “‘Article III limitations

are at issue, notions of consent and waiver cannot be

dispositive[.]’” Id. at 232 (first emphasis added; quoting

Schor, 478 U.S. at 851).

16

The Supreme Court reconfirmed twice just two Terms

ago that courts may treat Article III structural claims as

subject to waiver and forfeiture. In B&B Hardware, Inc. v.

Hargis Industries, Inc., 135 S. Ct. 1293 (2015), the Court held

that a decision by the Trademark Trial and Appeal Board—a

non-Article III tribunal—is entitled to the same preclusive

effect as a district court decision if the ordinary elements of

issue preclusion are met, id. at 1299. In so holding, the Court

eschewed consideration of any potentially “meritorious

constitutional objection” under Article III because that

argument was abandoned by Hargis Industries, and thus “it is

not before us.” Id. at 1304 (citing Plaut, 514 U.S. at 231–

232).

Continuing that pattern, in Wellness International

Network, supra, the Court held that “Article III is not violated

when the parties knowingly and voluntarily consent to

adjudication by a bankruptcy judge” of a state-law claim that

arose independently of bankruptcy law, 135 S. Ct. at 1939. In

Stern v. Marshall, supra, the Court had held that, as a general

matter, Article III forbids bankruptcy courts to enter final

judgments on such claims, 564 U.S. at 500–501. Wellness,

however, created an exception to that general rule where both

parties consent to bankruptcy-court adjudication.

Critically, at the end of its Wellness opinion, the Supreme

Court remanded the case to the Seventh Circuit to decide

whether Sharif’s consent was knowing and voluntary, and

whether “Sharif forfeited his Stern argument below.” 135 S.

Ct. at 1949. That remand would, of course, have been

pointless if Article III structural claims like the Stern claim

can never be waived or forfeited. See also Sharif, 135 S. Ct.

at 1949 (Alito, J., concurring in part and concurring in the

judgment) (“[R]espondent forfeited any Stern objection by

failing to present that argument properly in the courts below.

17

Stern vindicates Article III, but that does not mean that Stern

arguments are exempt from ordinary principles of appellate

procedure.”).

Of course, as the panel majority and concurrence well

chronicled, the Supreme Court’s pronouncements in this area

have been far from crystalline. See Bahlul II, 792 F.3d at 3–

5; 23–24 (Tatel, J., concurring). But B&B Hardware and

Wellness have done much to lift the fog. I accordingly

conclude that Schor does not require us to wade into a

constitutional thicket and review de novo Bahlul’s forfeited

Article III structural challenge.

2

I agree with my colleagues, however, that Schor affords

this Court some discretion to review a forfeited Article III

claim de novo. See Kavanaugh Concurring Op. at 3 n.1, Joint

Dissent at 4-6. But I would decline to exercise that discretion

in this case for three reasons.

First, there is no structural reason to take up Bahlul’s

fight with the Political Branches. Unlike Schor, Freytag,

Stern, Plaut, B&B Hardware, and Wellness, which were all

civil cases, this is a criminal case. That distinction matters

because the consequences of forfeiture are materially different

in civil and criminal contexts. In civil cases, a claim that a

party waives or forfeits is generally gone for good. An

appellate court will not review it under any standard of

review. See Salazar ex rel. Salazar v. District of Columbia,

602 F.3d 431, 437 (D.C. Cir. 2010); Nemariam, 491 F.3d at

482–483; cf. Singleton v. Wulff, 428 U.S. 106, 121 (1976)

(noting rare “circumstances in which a federal appellate court

is justified in resolving an issue not passed on below, as

where the proper resolution is beyond any doubt * * * or

where injustice might otherwise result”).

18

In addition, civil cases can pose the risk of parties

colluding and consenting to a non-Article III forum for

resolution of their dispute. Absent discretionary review, such

joint waivers of challenges to the judicial forum could

effectively strip Article III courts of the ability ever to address

the constitutionality of legislation reassigning the judicial

power.

That perceived need to ensure some mechanism for

enforcing the separation of powers and protecting the judicial

power against incursions by the Political Branches seemingly

motivated Schor’s discretionary exception to traditional

principles of waiver and forfeiture in civil cases. As the

Supreme Court explained, Article III “limitations serve

institutional interests that the parties cannot be expected to

protect.” Schor, 478 U.S. at 851; see also Peretz v. United

States, 501 U.S. 923, 950 (1991) (“Article III serves as an

inseparable element of the constitutional system of checks and

balances by preserving the role of the Judicial Branch in our

tripartite system of government.”) (quotation marks omitted).

Unlike civil cases, however, criminal cases like Bahlul’s

present no similar need to work around the ordinary

contemporaneous-objection rule. The whole reason my

colleagues and I are even debating the application of the

“plain-error” standard of review is that, in criminal cases,

forfeited claims are not really forfeited at all. They are still

subject to judicial review and decision; all that changes is the

level of scrutiny. See FED. R. CIV. P. 52(b); Olano, 507 U.S.

at 733–735. In other words, in criminal cases, a “forfeited”

Article III claim is still reviewed and decided; it is just harder

to win. See, e.g., Olano, 507 U.S. at 734 (“A court of appeals

cannot correct an error pursuant to Rule 52(b) unless the error

is clear under current law.”); In re Sealed Case, 573 F.3d 844,

851 (D.C. Cir. 2009) (“[A]n error can be plain if it violates an

19

absolutely clear legal norm.”) (quotation marks omitted).

That means that, unlike civil cases, the availability of plain-

error review in criminal cases ensures that clear or obvious

usurpations of Article III will not escape judicial scrutiny,

regardless of whether a criminal defendant timely raised such

objections below.

Likewise, even when a criminal defendant affirmatively

waives (rather than forfeits) a structural Article III challenge,

the argument may, if warranted, still be reviewed later

through the lens of an ineffective-assistance-of-counsel claim.

If the constitutional transgression is so clear that a failure to

raise it was not “within the range of competence demanded of

attorneys in criminal cases,” and if it prejudiced the

defendant’s case, see United States v. Streater, 70 F.3d 1314,

1318 (D.C. Cir. 1995) (quoting Hill v. Lockhart, 474 U.S. 52,

56, 59 (1985)), an appellate court may decide the

constitutional question. 3

3

In a series of cases challenging the Federal Magistrates Act, Pub.

L. No. 90-578, 82 Stat. 1107–1119 (1968), the Supreme Court

addressed constitutional objections to adjudications by non-Article

III federal magistrate judges in criminal cases. However, none of

those cases presented a structural Article III question because the

district court’s de novo review ensured that the operative decision

was made by an Article III judge. See, e.g., Peretz, 501 U.S. at 937

(“[N]o * * * structural protections are implicated” because “[t]he

ultimate decision whether to invoke the magistrate’s assistance is

made by the district court, subject to veto by the parties.”)

(quotation omitted); United States v. Raddatz, 447 U.S. 667, 683

(1980) (The “delegation does not violate Art. III so long as the

ultimate decision is made by the district court.”); see also Gomez v.

United States, 490 U.S. 858, 874 (1989) (construing the Act not to

authorize magistrate judges to supervise jury selection in part

because the court “harbor[ed] serious doubts that a district judge

could review this function meaningfully”).

20

Second, in almost all of the Supreme Court cases granting

review of a structural Article III question, the barrier to

judicial review was waiver, not forfeiture. See Wellness, 135

S. Ct. at 1939 (noting “the parties’ consent” to bankruptcy

court adjudication); Freytag, 501 U.S. at 878 (“[P]etitioners

gave their consent to trial before the Special Trial Judge.”);

Schor, 478 U.S. at 837 (Schor himself “invoked the

[Commission’s] reparations jurisdiction[.]”). The waivers

arose, moreover, because Congress designed the challenged

statutory schemes so that litigants would first choose to bring

their claim in a non-Article III forum. In that way, Congress

baked the barrier to judicial review right into the allegedly

Article III-circumventing statutory scheme, thus presenting

the question whether Congress could team up with litigants to

divert the judicial power to a non-Article III tribunal. See

Wellness, 135 S. Ct. at 1939 (considering “whether Article III

allows bankruptcy judges to adjudicate [Stern] claims with the

parties’ consent”); Schor, 478 U.S. at 851 (“[T]he parties

cannot by consent cure the constitutional difficulty.”).

By definition, the constitutionality of such statutory

schemes could not be determined without bypassing the

element of private choice that Congress used to trigger the

non-Article III tribunal in the first instance. That presumably

is why the Supreme Court explained in Plaut that “[w]aiver

subject to the control of the courts themselves”—rather than

imposed by Congress—would be materially different to the

constitutional analysis, “would obviously raise no issue of

separation of powers, and would be precisely in accord with”

Schor. Plaut, 514 U.S. at 231–232 (emphasis added).

This case, however, involves a forfeiture, not a waiver, of

an Article III objection that was fully available to Bahlul

throughout the military commission proceeding. Bahlul, like

criminal defendants generally, had every opportunity and

21

incentive to raise objections that (if successful) would have

foreclosed his conviction or would have provided grounds for

a full reversal on appeal. Indeed, criminal defendants as a

class are profoundly self-interested when it comes to

preserving substantial legal challenges to exercises of

prosecutorial power. Thus the risk that criminal defendants

will team up with the prosecution in a way that would

otherwise preclude judicial enforcement of the separation of

powers is something short of negligible.

For those reasons, the contemporaneous-objection rule

does not pose the same practical barrier to constitutional

review in criminal cases that it did in Schor’s civil litigation

context. Instead, in criminal prosecutions, “the claims of

individuals * * * have been the principal source of judicial

decisions concerning separation of powers and checks and

balances.” Bond v. United States, 564 U.S. 211, 222 (2011).

Here as well, all that would be needed for a court to decide de

novo the structural Article III question that Bahlul belatedly

raises is for a defendant in one of the other pending military

commission proceedings to timely raise it as a defense to

prosecution in that forum.

Third, Bahlul has identified no unusual obstacles or

exceptional circumstances that excuse his failure to raise his

Article III claim before the military commission. He had the

benefit of trained counsel and multiple procedural

opportunities to voice his constitutional objections. Bahlul’s

knowing and willful refusal to participate in his trial should

not now be rewarded by addressing his constitutional

arguments de novo rather than under plain-error review. To

the contrary, excusing Bahlul’s failure to bring his Article III

structural claim would encourage similar sandbagging

behavior from other military commission defendants. They

would have nothing to lose by first trying their chances before

22

the commission and, if unhappy with the results, pulling an

Article III challenge out of their pocket in the hope of trying

the case all over again in federal court (with the added benefit

of the prosecution’s hand having been revealed).

Bahlul argues (Pet. Br. 37), and Judge Kavanaugh’s

concurring opinion agrees (at 3 n.1), that the government

failed to raise any forfeiture argument before the Court of

Military Commission Review, or to argue for plain-error

review, and thus it “has—in a word—forfeited [its] forfeiture

argument here,” Pet. Br. 37 (quoting Solomon v. Vilsack, 763

F.3d 1, 13 (D.C. Cir. 2014)); see also Joint Dissent at 2–4. I

read our precedent and the record differently.

For starters, the rule that a party may forfeit a forfeiture

argument applies to the preservation of a substantive legal

claim in a civil case, like the discriminatory retaliation claim

that was at issue in Solomon, 763 F.3d at 13. The issue in this

criminal appeal, however, is not whether Bahlul’s

constitutional claims get reviewed at all—the special plain-

error rule in criminal cases ensures some type of review. The

only question is which standard of review governs the appeal,

and “[t]he Government cannot alter our standard of review—

by concession, inadvertence, poor oral advocacy or

otherwise.” Bahlul II, 792 F.3d at 32 n.3 (Henderson, J.,

dissenting); see United States v. Nueci-Pena, 711 F.3d 191,

196 n.5 (D.C. Cir. 2013) (reviewing for plain error although

the government “erroneously assert[ed] that de novo review

applie[d]”). That is because, as an appellate court, this court

“must apply some standard of review to every issue it

considers * * * [so] no party has the power to control our

standard of review.” United States v. Vontsteen, 950 F.2d

1086, 1091 (5th Cir. 1992) (emphasis omitted).

23

Said another way, standards of review are not claims that

parties can choose to make or not in a case. Those review

standards instead enforce structural judgments about the

relative expertise of trial and appellate courts, and the need

for efficiency, fairness, and stability in the judicial process.

See Puckett, 556 U.S. at 134. To illustrate, trial courts bear

primary responsibility for fact-finding because they see the

evidence and witnesses firsthand, and superintend evidentiary

rules and the creation of the record in the case. An appellate

court reviewing only the paper record is ill-positioned to

make factual findings, and so we review factual

determinations only for clear error. See Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 574 (1985); United States

v. United States Gypsum Co., 333 U.S. 364, 395 (1948). We

would not find facts de novo if a party failed to argue for—or

even agreed to waive—clear-error review.

Plain-error review likewise enforces structural interests

by ensuring that (i) potential errors can be stopped before

harm occurs and resources are invested in a trial that must be

redone; (ii) trial court determinations are not ambushed on

appeal by never-before-voiced objections; and (iii) the

number of reversals is reduced, which promotes trust in the

stability of court judgments and finality in the enforcement of

criminal law. See Puckett, 556 U.S. at 134; see also United

States v. Hunter, 786 F.3d 1006, 1111 (D.C. Cir. 2015) (The

contemporaneous-objection rule’s goal of timely rectifying

errors “is not served when a defendant raises an objection

after proceedings are complete and a ruling has been handed

down.”).

On top of that, the record shows that the government did

not forfeit its forfeiture argument. Before the Court of

Military Commission Review, the government specifically

argued that Bahlul “waived all motions, defenses or

24

objections (except for lack of jurisdiction or failure to allege

an offense) when he failed to raise any issues below.” Pet.

App. 161. Indeed, this court’s prior en banc decision

acknowledged that the government “argued for plain-error

review before the [Court of Military Commission Review], in

its original brief to the panel of this Court and in its brief to

the en banc court.” Bahlul I, 767 F.3d at 10 n.5; see also

Brief for the United States at 65, Bahlul v. United States, 2013

WL 297726 (D.C. Cir. Jan. 25, 2013) (arguing that Bahlul’s

Define and Punish Clause, Ex Post Facto Clause, and Article

III arguments “were forfeited below”).

To be sure, at oral argument before the panel, the

government suggested that Bahlul’s structural argument might

not be forfeitable, see Pet. Supp. App. 234. But immediately

thereafter, counsel asserted that “[t]he structural component of

that argument is forfeitable,” id. at 235 (emphasis added). In

addition, the government argued that Bahlul had not raised an

Article III structural claim at all. See id. at 234 (“I do not

acknowledge that he was raising [a structural Article III

argument].”). In my view, that is far too murky a foundation

from which to launch this court into applying an unwarranted

standard of review to adjudge the constitutionality of a joint

exercise by the President and the Congress of their national

security and war powers. See, e.g., Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

concurring) (joint exercises of power by the Political

Branches merit “the widest latitude of judicial

interpretation”); see also Bank Markazi v. Peterson, 136 S.

Ct. 1310, 1328 (2016) (“[F]oreign affairs” is “a domain in

which the controlling role of the political branches is both

necessary and proper.”); Center for National Security Studies

v. United States Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir.

2003) (“[T]he judiciary owes some measure of deference to

the executive in cases implicating national security[.]”).

25

Nor do I understand why labeling Bahlul’s argument as

“structural” should change the rules. The Constitution at

every turn divides power not only horizontally between the

federal branches of government, but also vertically between

the national government, the States, and individuals. It is

hard to understand why Bahlul’s Article III claim is any more

structural than Bahlul’s Ex Post Facto claim, to which this

court sitting en banc accorded only plain-error review. See

also Carmell, 529 U.S. at 531 n.21 (Ex Post Facto Clause is

in part “aimed at * * * reinforcing the separation of powers”).

The dissenting opinion adds that courts have a “strong

interest * * * in maintaining the constitutional plan of

separation of powers.” Joint Dissent at 9 (quoting Glidden

Co. v. Zdanok, 370 U.S. 530, 536 (1962)). True. But when

the only reason a separation-of-powers claim is not teed up is

because the defendant chose not to raise it below, courts

routinely apply plain-error review. See, e.g., United States v.

Gonzalez, 682 F.3d 201, 203 (2d Cir. 2012) (reviewing

separation-of-powers claim for plain error “because [the

defendant] did not raise the issue[] below”); United States v.

Anderson, 591 F.3d 789, 792 (5th Cir. 2009) (reviewing for

plain error where the defendant “could have mentioned

separation of powers [below] but, for whatever reason, he

chose not to”). 4

The dissenting opinion also suggests that this really-

important-issue exception can be limited to intrusions on the

judiciary’s Article III turf because then the court is granting

de novo review for the courts’ “own benefit,” to “protect the

4

See also, e.g., United States v. Clark, 634 F.3d 874, 877 (6th Cir.

2011); United States v. Carraway, 612 F.3d 642, 646 (7th Cir.

2010); United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009);

United States v. Rusan, 460 F.3d 989, 992 (8th Cir. 2006); United

States v. Pojilenko, 416 F.3d 243, 249 n.6 (3d Cir. 2005).

26

judiciary’s role within our system of divided government,”

Joint Dissent at 9, 6. But the Constitution separates power to

protect the rights and liberty of the people, not to protect the

courts for the courts’ sake. See New York v. United States,

505 U.S. 144, 182 (1992) (“T]he constitution divides

authority * * * for the protection of individuals. * * * The

Constitution’s division of power among the three branches is

violated where one branch invades the territory of another,

whether or not the encroached-upon branch approves the

encroachment.”). Plus it seems to me wholly untenable for

courts to decide that one criminal defendant’s Eighth

Amendment challenge to his death sentence fails on plain-

error review, see, e.g., United States v. McGarity, 669 F.3d

1218, 1255 (8th Cir. 2012), but an enemy combatant’s

challenge to his capital conviction succeeds because it was to

the court’s “own benefit” to afford it plenary review.

Whatever considerations may appropriately weigh in favor of

a discretionary decision to grant de novo review, the

dispositive factor in a criminal case should not be that the

federal judiciary decides it has skin in the game.

Judge Kavanaugh’s concurring opinion concludes that

the “extraordinary importance” of the constitutional questions

is a reason to excuse Bahlul from the consequences of his

forfeiture and grant de novo review. Kavanaugh Concurring

Op. at 3 n.1. I think that gets the constitutional calculus

exactly backwards. The separation of powers should counsel

the greatest judicial hesitation when the Political Branches are

jointly exercising their judgment in areas of national security,

the conduct of war, and foreign relations. See generally

Youngstown Sheet & Tube Co., 343 U.S. at 636–637 (joint

actions of the Political Branches “personify the federal

sovereignty” and “would be supported by the strongest of

presumptions and the widest latitude of judicial

interpretation”). Here the constitutional structure itself raises

27

a yellow caution flag against unnecessary judicial intrusion,

making it the better judicial course just to decide “the

narrower ground for adjudication of the constitutional

questions in [a] case * * * first.” Plaut, 514 U.S. at 217.

Here, that means applying plain-error review.

III

To prevail on plain-error review, Bahlul must show that

the alleged error (i) is plain, (ii) affected his substantial rights,

and (iii) seriously affected the fairness, integrity or public

reputation of judicial proceedings. See Olano, 507 U.S. at

732–737. For an error to be “plain,” it must be “clear” or

“obvious.” Id. at 734. “A ruling’s error is clear if, at the time

it was made, a clear precedent in the Supreme Court or this

circuit established its erroneous character.” United States v.

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

“Meeting all four prongs” of the plain-error test “is

difficult, as it should be.” Puckett, 556 U.S. at 135 (quotation

marks omitted). Doubly so here because the Supreme Court

has instructed that the actions of a military commission “are

not to be set aside by the courts without the clear conviction

that they are in conflict with the Constitution or laws of

Congress constitutionally enacted.” Quirin, 317 U.S. at 2.

Bahlul’s constitutional claims cannot survive that demanding

review. 5

5

The Supreme Court explained in Hamdan v. Rumsfeld, 548 U.S.

557 (2006), that “the precedent” supporting trial by military

commission “must be plain and unambiguous” in those instances

“[w]hen * * * neither the elements of the offense nor the range of

permissible punishments is defined by statute or treaty,” id. at 602.

That standard does not apply here because the 2006 Act specifically

defines the elements of its conspiracy provision and identifies it as

28

Bahlul’s principal argument is that, in authorizing his

prosecution before a military commission for what he labels

“inchoate conspiracy,” Congress exceeded its legislative

power under the Define and Punish Clause, U.S. CONST., Art.

I, § 8, cl. 10. Specifically, Bahlul argues that the conspiracy

for which he was charged and convicted cannot be an

“Offence[] against the Law of Nations,” within the meaning

of Article I of the Constitution, because inchoate conspiracy is

not a recognized crime under international law. Bahlul

further argues that inchoate conspiracy, as a stand-alone

offense, was traditionally triable by jury at common law and

for that reason falls exclusively within the Article III judicial

power.

Because Bahlul presses only an as-applied challenge to

his own conviction under the 2006 Act, see Oral Arg. Tr. 6;

Pet. Br. 57, I would not decide whether Congress has the

constitutional power to authorize the prosecution generally of

inchoate conspiracies before a military commission. Rather,

for five reasons, it is neither clear nor obvious—in other

words, it is not plain—that the particular statutory conspiracy

of which Bahlul was convicted must be tried in an Article III

court.

First, in arguing that Congress lacked the legislative

authority to assign his conspiracy charge to a military

commission for trial, Bahlul places great weight on the

government’s concession that inchoate conspiracy has not yet

been recognized as an offense against international law. Pet.

Br. 16; see Brief for the United States at 50, Bahlul v. United

States, 2013 WL 297726 (D.C. Cir. Jan. 25, 2013). But “we

are not obligated to accept the Government’s concession.”

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

§ 950v(b)(28).

29

Bahlul I, 757 F.3d at 18; see also United States v. Baldwin,

563 F.3d 490, 491 (D.C. Cir. 2009) (“We are not obligated to

accept the government’s confession of error, particularly

when there is reason to doubt whether the government’s

position is correct.”) (citation omitted). That is because “the

separation of powers does not depend on the views of

individual Presidents, nor on whether the encroached-upon

branch approves the encroachment.” Free Enterprise Fund v.

Public Company Accounting Oversight Bd., 561 U.S. 477,

497 (2010) (citation and quotation marks omitted). More to

the point, plain-error analysis looks at how clearly established

governing law is, not the briefing strategies of particular

parties.

Second, Bahlul’s asserted error—Congress’s power to

criminalize traditional inchoate conspiracy in military

commission proceedings—is not in fact implicated by his

case. I agree with Judge Wilkins that the statutory conspiracy

of which Bahlul was convicted goes beyond the elements of

ordinary inchoate conspiracy. Traditionally, a conviction for

inchoate conspiracy requires proof of only two elements:

agreement between two or more persons, and intent thereby to

achieve a certain objective. Wayne R. LaFave, Substantive

Criminal Law § 12.2 (2015). Proof of neither an overt act nor

a completed offense is required. See United States v.

Shabani, 513 U.S. 10, 13–14 (1994) (“We have consistently

held that the common law understanding of conspiracy ‘does

not make the doing of any act other than the act of conspiring

a condition of liability.’”) (quoting Nash v. United States, 229

U.S. 373, 378 (1913)). Moreover, an inchoate conspiracy

could be tied to any object offense. Hogan v. O’Neill, 255

U.S. 52, 55 (1921).

Conspiracy under the 2006 Act is materially different.

To begin with, in addition to requiring a specific intent to

30

commit the overt acts, the 2006 Act also requires that the

overt acts be committed with the intent “to effect the object of

the conspiracy.” 10 U.S.C. § 950v(b)(28); see Pet. Supp.

App. 137. Moreover, the only allowable objects of Bahlul’s

conspiracy are “substantive offenses triable by military

commission under” the Act. 10 U.S.C. § 950v(b)(28).

Bahlul does not dispute that those substantive offenses

include offenses against the law of war that may be tried

before a military commission. On top of that, the statutory

scheme seems to anticipate that a conviction will be linked to

a completed offense. That is because the statute specifically

ties the authorized sentences to the fate of the victims: the

crime “shall be punished, if death results to one or more of the

victims, by death or such other punishment as a military

commission under this chapter may direct, and, if death does

not result to any of the victims, by such punishment, other

than death, as a military commission under this chapter may

direct.” Id.

In compliance with the statute, Bahlul was found to have

committed ten overt acts, including, for example, preparing a

recruiting video celebrating the USS Cole attack, acting as bin

Laden’s personal secretary, and preparing martyr wills for

two of the 9/11 hijackers. He was also found guilty of

conspiracy to commit seven charged objects, including

murder of protected persons, attacking civilians, murder in

violation of the law of war, and terrorism.

Importantly, the military judge’s instructions to the

commission enforced those distinct features of statutory

conspiracy. The instructions expressly predicated Bahlul’s

conviction on a finding “beyond a reasonable doubt” that

Bahlul “personally committed at least one of the overt acts”

charged. Pet. Supp. App. 140–141. In addition, for each

object offense of the conspiracy, the commission was required

31

to “find beyond a reasonable doubt” that Bahlul (i) “entered

into an agreement” to commit the offense; (ii) did so

“intentionally”; (iii) “knew the unlawful purpose of the

agreement”; (iv) “joined with the intent to further its unlawful

purpose”; and (v) “committed an overt act in furtherance of

the agreement.” Id. at 145. The instructions emphasized that

the government must “prove[] beyond a reasonable doubt that

the agreement intended every element of” any offense that

was determined to be an object of the conspiracy. Id. at 140.

Along with its guilty verdict, the commission returned

detailed factual findings documenting its determination that

Bahlul’s conspiracy met those statutory elements. The

commission found that Bahlul committed ten of the charged

overt acts, and entered into an agreement that “intended every

element” of all seven alleged object offenses, Pet. Supp. App.

140, including specifically “[m]urder of protected persons,”

“attacking civilians,” “murder in violation of the law of war,”

and “terrorism,” id. at 137, each of which violates Article 3 of

the Geneva Convention, see Geneva Convention (IV) Relative

to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 75

U.N.T.S. 2876 U.S.T. 3516.

Thus, for all of Bahlul’s arguments about Congress’s

power to convict him by military commission of traditional or

common-law inchoate conspiracy, the commission convicted

him of a different and distinct statutory conspiracy offense, in

which Bahlul (i) knew the objects of the conspiracy, which

included multiple violations of the international law of war;

(ii) joined an agreement to intentionally further those

violations of the law of nations; (iii) personally intended to

have every element of those international law of war offenses

committed; and (iv) intentionally undertook the overt acts to

further the agreement’s unlawful purposes. Bahlul’s use of

the common law as a constitutional yardstick thus overlooks

32

the elements of the statutory offense of which he was actually

convicted and the dearth of precedent suggesting that

substantive offenses against the international law of war were

traditionally tried in courts at common law. Accordingly,

whatever the scope of congressional authority to consign

other stand-alone conspiracy offenses to a non-Article III

tribunal, it is not plain that conspiracy to commit international

war crimes as carefully defined in the 2006 Act falls

exclusively within the Article III judicial power.

Third, given the specific elements of Bahlul’s conspiracy

conviction, any delta between his conspiracy offense and

those offenses that international law proscribes is too narrow

to rise to the level of plain constitutional error.

To begin with, international law has recognized

conspiracy as a stand-alone offense for certain illegal acts that

bear a close resemblance to Bahlul’s charged conduct. For

example, international law has long allowed prosecution for

conspiracy to wage aggressive war (also known as common

plan to wage aggressive war). See 1 TRIAL OF THE MAJOR

WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY

TRIBUNAL: NUREMBERG, 14 November 1945–1 October

1946, p. 225 (1947). In that respect, international law

recognizes that “[p]lanning and preparation are essential to

the making of war,” and “[c]ontinued planning, with

aggressive war as the objective” may be punished as a

violation of the law of war. Id. at 224–225; see also Hamdan

v. Rumsfeld, 548 U.S. 557, 610 (2006) (plurality opinion)

(describing “common plan to wage aggressive war” as “a

crime against the peace [that] requires for its commission

actual participation in a ‘concrete plan to wage war’”)

(quoting 1 TRIAL OF MAJOR WAR CRIMINALS, supra, at 225).

33

Like Bahlul’s conviction, conspiracy to commit

aggressive war at Nuremberg turned on the commission of

overt acts directly tied to waging aggressive war and an object

offense that was itself a crime against international law.

Nothing in constitutional text or settled precedent plainly

foreclosed Congress from bridging the gap between the

formal waging of such war by officials of Nazi Germany and

al Qaeda’s waging of terrorist aggression against the United

States.

Modern statutes defining international law offenses also

permit punishment for conspiracy to commit genocide as a

stand-alone offense. See Updated Statute of the International

Criminal Tribunal for the Former Yugoslavia Art. 4 (2009)

(ICTY Statute); Statute of the International Tribunal for

Rwanda Art. 2 (1994); Convention on the Prevention and

Punishment of the Crime of Genocide Art. 3, Dec. 9, 1948, 78

U.N.T.S. 277. The Statute of the International Tribunal for

the Former Yugoslavia, for example, expressly recognizes

“conspiracy to commit genocide.” Id., Art. 4. The statute

defines genocide as, inter alia, “killing members of [a]

group,” “causing serious bodily or mental harm to members

of [a] group,” or “deliberately inflicting on the group

conditions of life calculated to bring about its physical

destruction in whole or in part,” “with intent to destroy, in

whole or in part, [that] national, ethnical, racial or religious

group[.]” Id., Art. 4(2)(a); see Simon v. Republic of Hungary,

812 F.3d 127, 143 (D.C. Cir. 2016) (similar, citing the

Convention on the Prevention of the Crime of Genocide).

Of course, the object offenses tied to Bahlul’s conviction

do not include genocide. But Bahlul’s overt acts do include

attempts to kill and cause serious bodily and mental harm on

members of a specific group at least in part because of their

protected characteristics. Bahlul’s video celebrating the USS

34

Cole attack calls for jihad against the United States and

blames “Western infidels” for Muslim suffering. Bahlul I,

767 F.3d at 5–6. Bahlul’s video has been translated into

several languages and widely distributed. Id. at 6. Given that

international law proscribes a calculated conspiracy to

exterminate individuals on the basis of their nationality

(outside the context of formal war), constitutional law does

not plainly foreclose Congress from using its Define and

Punish Clause authority to outlaw a conspiracy to

intentionally commit mass murder of and to incite acts of

violence against Americans, at least when combined with an

overt act furthering an object offence that violates

international law.

On top of that, international law recognizes some

conspiracy offenses as an independent source of criminal

liability. In particular, international law permits conviction

for joint criminal enterprise where “a plurality of persons

participat[es] in the criminal plan”; there is “a common

purpose which amounts to or involves the commission of a

crime”; and “the accused[] participat[es] in the common

design.” Guilia Bigi, Joint Criminal Enterprise in the

Jurisprudence of the International Criminal Tribunal for the

Former Yugoslavia and the Prosecution of Senior Political

and Military Leaders, in 14 MAX PLANCK YEARBOOK OF

UNITED NATIONS LAW 56 (2010). The Rome Statute, for

example, makes a person “criminally responsible and liable

for punishment for a crime” if that person “contributes to the

commission or attempted commission of such a crime by a

group of persons acting with a common purpose.” Rome

Statute of the International Criminal Court Art. 25(3)(d), July

17, 1998, 2187 U.N.T.S. 90. The contribution must be

“intentional,” and must be “made with the aim of furthering

the criminal activity or criminal purpose of the group” or “in

the knowledge of the intention of the group to commit the

35

crime.” Id. Given its settled roots in international law, there

is no dispute that Congress could authorize a military

commission prosecution for joint criminal enterprise. See

Oral Arg. Tr. 10.

Classically, joint criminal enterprise differs from ordinary

inchoate conspiracy by its requirement of action in

furtherance of the agreement. See Allison Marston Danner &

Jenny S. Martinez, Guilty Associations: Joint Criminal

Enterprise, Command Responsibility, and the Development of

International Criminal Law, 93 CAL. L. REV. 75, 119 (2005).

The offense is also doctrinally distinct from traditional

conspiracy because it is a form of liability, while inchoate

conspiracy is a freestanding substantive crime. Id. at 119; see

also Hamdan, 548 U.S. at 610 n.40 (plurality opinion)

(“[J]oint criminal enterprise” is a “species of liability for the

substantive offense (akin to aiding and abetting), not a crime

on its own.”).

But as applied to this case, the distinctions between a

conspiracy conviction under the 2006 Act and what a

conviction for joint criminal enterprise would have entailed

are narrower than they would be for traditional inchoate

conspiracy. Bahlul’s conspiracy charge under the 2006 Act

did require explicit proof of an overt act and involved a

completed object offense. As a result, “it is not clear whether

th[e] formal distinction between [joint criminal enterprise]

and conspiracy carries much practical weight.” Danner &

Martinez, supra, at 119; see Peter Margulies, Defining,

Punishing and Membership in the Community of Nations, 36

FORDHAM INT’L L.J. 1, 86 (2013) (The “pairing of joint

intention with action [in the Rome Statute’s codification of

Joint Criminal Enterprise] is very close to conspiracy—close

enough that no individual charged with the latter as a mode of

liability can claim lack of notice.”). Whatever the distinctions

36

between the two, they do not make a clear or plain

constitutional difference.

Beyond that, Bahlul conceded at oral argument, Oral Arg.

Tr. 9–10, that the Constitution would permit his trial before a

military commission on a Pinkerton conspiracy theory of

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

The Pinkerton doctrine of conspiracy holds an individual

vicariously liable for reasonably foreseeable substantive

crimes committed by his co-conspirators in furtherance of the

conspiracy. See id. at 646–647.

Pinkerton “intertwines conspiracy as a substantive crime

with conspiracy as a theory of liability[.]” Danner &

Martinez, supra, at 116; see, e.g., United States v. Edmond,

924 F.2d 261, 268 (D.C. Cir. 1991) (Pinkerton established

that commission of a substantive offense and conspiracy to

commit it are distinct crimes, and simultaneously authorized

holding a conspirator responsible for substantive criminal acts

committed by a co-conspirator). But Pinkerton liability is

distinct from inchoate conspiracy because it relies on the

imputation of co-conspirators’ completed offenses, and

requires a finding that they were “reasonably foresee[able] as

a necessary or natural consequence of the unlawful

agreement.” Pinkerton, 328 U.S. at 648; see also Danner &

Martinez, supra, at 115–116. In Bahlul’s case, because he

joined agreements to intentionally commit war crimes, acted

in furtherance of those agreements, and was intricately

involved in preparing two 9/11 perpetrators for their attacks, it

is far from plain that the acts of terrorism that flowed directly

from his conspiratorial activities were not precisely what he

intended to have happen, let alone “reasonably foresee[able]

as a necessary or natural consequence of the unlawful

agreement.” Pinkerton, 328 U.S. at 648. At least the gap

37

between the two forms of conspiracy is not so clear as to tie

Congress’s legislative hands on plain-error review.

Bahlul’s position—essentially adopted by the dissenters,

see Joint Dissent at 52–60—is that, although a hypothetical

conviction for common plan to wage aggressive war, joint

criminal enterprise, or Pinkerton conspiracy would have been

valid, his conviction here was unconstitutional because the

2006 Act outlaws a stand-alone “conspiracy.” Oral Arg. Tr.

9–10. But there is no dispute that the law of nations permits

some freestanding conspiracy convictions—for aggressive

war and genocide. So the fact that the 2006 Act denominates

a stand-alone conspiracy offense cannot make all the

difference.

If Bahlul means by this argument that the 2006 Act might

allow someone else to be convicted of ordinary, common-

law-like conspiracy, that is not his argument to make.

Outside the First Amendment context (which is not plausibly

implicated here), a criminal defendant whose culpable

conduct falls within the constitutional range cannot upend that

conviction just because the statute’s alleged overbreadth

might permit the unconstitutional conviction of another

individual. See United States v. Williams, 553 U.S. 285, 304

(2008) (“[O]rdinarily ‘a plaintiff who engages in some

conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others.’”)

(quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 495 (1982)) (alteration omitted).

What matters here is that Bahlul’s own conviction was

not for ordinary inchoate conspiracy. It was for a carefully

crafted form of statutory conspiracy that, on the record of this

case, resembles in important ways those forms of conspiracy

or collective action that get the international-law nod of

38

approval. Surely plain-error review cannot turn on the same

nuances of varying conspiracy-liability theories that confound

most first-year law students. See Terrell, 696 F.3d at 1260

(requiring on-point precedent in the Supreme Court or this

circuit to establish clear error).

Contrary to the worry expressed in the dissenting opinion

(at 55–60), that conclusion does not find Bahlul guilty of a

crime for which he was not charged or convicted. Instead, I

decide only that, given the elements of the statutory crime of

which Bahlul was convicted and its comparability in some

key respects to conspiracies that the parties agree transgress

international law, Bahlul’s conviction of conspiracy under the

2006 Act did not plainly exceed Congress’s constitutional

authority.

Fourth, Supreme Court precedent has not required

slavish adherence to the precise contours of explicitly

recognized international law as a precondition to Congress’s

exercise of its power under the Define and Punish Clause.

For instance, in United States v. Arjona, 120 U.S. 479 (1887),

the Court held that the Define and Punish Clause gave

Congress the authority to punish an individual who

counterfeited another nation’s securities, id. at 487–488. The

Court did not identify any express international proscription

on counterfeiting securities, but explained that the prohibition

on counterfeiting money might, “with just propriety, be

extended to the protection of this more recent custom among

bankers of dealing in foreign securities[.]” Id. at 486. For

that reason, the Supreme Court concluded, “a law which is

necessary and proper to afford this protection” fell within

Congress’s Article I power because the law was “needed to

carry into execution a power conferred by the constitution on

the government of the United States exclusively.” Id.

39

Arjona thus held that Congress’s power to criminalize an

offense did not turn on whether the act was expressly

prohibited by international law. Instead, it was sufficient that

proscribing certain conduct was “necessary and proper” to

protect rights implicitly recognized by the law of nations.

Likewise, in In re Yamashita, 327 U.S. 1 (1946), the

Supreme Court affirmed the conviction of a Japanese military

commander before a military commission for “permitting [his

troops] to commit brutal atrocities and other high crimes

against people of the United States and of its allies and

dependencies,” id. at 13–14. Even though international law

had not expressly recognized liability for such supervisorial

conduct, the Court noted that international law outlined the

commander’s duty to uphold the law of war. See id. at 15–16

(Geneva Conventions imposed on the commander an

affirmative “duty * * * to provide for the details of execution

of the foregoing articles (of the convention)”); cf. id. at 40

(Murphy, J., dissenting) (protesting that Yamashita’s

conviction was not “based upon charges fairly drawn in light

of established rules of international law and recognized

concepts of justice”). What proved critical in Yamashita was

that the commander’s offense—the failure to restrain

subordinate troops—“would almost certainly result in

violations which it is the purpose of the law of war to

prevent.” Id. at 15 (majority opinion).

So too here. Bahlul’s statutory conspiracy conviction and

the commission’s factual determinations on which it rested

are closely tied to offenses against the “Law of Nations”

within the meaning of the Constitution’s Define and Punish

Clause, Art. I, § 8, cl. 10. At a bare minimum, plain-error

review does not leave Congress powerless to do nothing more

than mimic the precise contours of extant international

precedent.

40

Fifth and finally, plain-error review requires Bahlul to

identify “clear precedent” from this court or the Supreme

Court “establish[ing] [the] erroneous character” of his

conspiracy conviction, Terrell, 696 F.3d at 1260. But the

closest precedent from this court is our prior en banc decision

in Bahlul I, which points in the opposite direction. There, a

majority of this court held that it is not “plain” that conspiracy

falls outside the statutory limits on crimes triable by military

commission. 767 F.3d at 22. Because the Ex Post Facto

Clause, U.S. CONST., Art. I, § 9, cl. 3, forbade reliance on the

2006 Act, the court had to determine whether Bahlul’s

inchoate conspiracy conviction fell plainly outside the “law of

war” within the meaning of the Articles of War, 10 U.S.C.

§ 821. See Bahlul I, 767 F.3d at 22. Under the Articles of

War, conspiracy had to be an offense that “by the law of war

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

As this court explained in Bahlul I, the Supreme Court

has not yet resolved the question whether “law of war” means

only the international law of war or includes “the common

law of war developed in U.S. military tribunals.” 767 F.3d at

22–23. But on plain-error review, it was sufficient that the

Supreme Court has relied on domestic precedent in addition

to international law to ascertain whether a crime is triable as

an offense against the “law of war.” Id. at 23–24 (citing

Hamdan, 548 U.S. at 603–609 (plurality opinion); id. at 689–

704 (Thomas, J., dissenting); Quirin, 317 U.S. at 31–35, 42

n.14; Yamashita, 327 U.S. at 19–20).

So too here, three examples of domestic wartime

precedent make it far from plain that conspiracy under the

2006 Act would not be triable by military commission.

For starters, the individuals held responsible for President

Lincoln’s assassination were charged with and convicted of

41

“combining, confederating, and conspiring together * * * to

kill and murder, within the Military Department of

Washington, and within the fortified and intrenched lines

thereof, Abraham Lincoln[.]” H.R. Doc. No. 314, 55th Cong.,

3d Sess., 696 (1899). President Andrew Johnson personally

approved the convictions, relying in part on the opinion of

Attorney General James Speed advising that the individuals

could be tried for conspiracy before a military commission.

11 Op. Att’y Gen. at 297. As this court explained in Bahlul I,

“this highest-level Executive Branch deliberation is worthy of

respect in construing the law of war.” 767 F.3d at 25 (citing

Sosa v. Alvarez-Machain, 542 U.S. 692, 733–734 (2004)).

In addition, Nazi saboteurs who entered the United States

intending to destroy industrial facilities were convicted of

conspiracy in Quirin and in Colepaugh v. Looney, 235 F.2d

429, 431–432 (10th Cir. 1956). While the Supreme Court and

the Tenth Circuit each affirmed the saboteurs’ convictions

based on other charges, those decisions are “prominent

example[s]” of conspiracy charges reached in law-of-war

military commissions, approved by the executive, and

permitted by the judiciary, including the Supreme Court.

Bahlul I, 767 F.3d at 26.

Lastly, during the Korean War, General Douglas

MacArthur ordered that persons accused of “conspiracies and

agreements to commit * * * violations of the laws and

customs of war of general application” be tried by military

commission. Letter Order, Gen. HQ, United Nations

Command, Tokyo, Japan, Trial of Accused War Criminals

(Oct. 28, 1950) (Rules of Criminal Procedure for Military

Commissions, Rule 4).

While not definitively answering the ultimate

constitutional question, “the historical practice of our wartime

42

tribunals is sufficient to make it not ‘obvious’ that conspiracy

was not traditionally triable by [a] law-of-war military

commission” under the Articles of War as an offense against

the law of war. Bahlul I, 767 F.3d at 27 (citing Olano, 507

U.S. at 734). Further, because the “law of war” in the Articles

of War “incorporate[s] by reference, as within the jurisdiction

of military commissions, all offenses which may

constitutionally be included within that jurisdiction,” Quirin,

317 U.S. at 30, those same domestic precedents underscore

the absence of any plain constitutional error in Bahlul’s

statutory conspiracy conviction by a military commission.

IV

Bahlul’s other constitutional challenges also cannot

surmount plain-error review.

First, he argues that his conspiracy conviction runs afoul

of the Constitution’s Judicial Power Clause, Art. III, § 2, cl. 1.

But precedent has long established that criminal prosecutions

for violations of the law of war do not fall within the

exclusive jurisdiction of Article III courts. See, e.g., Johnson

v. Eisentrager, 339 U.S. 763, 786 (1950) (lawfulness of

military commission jurisdiction is “well-established”);

Bahlul II, 792 F.3d at 7 (citing Quirin, 317 U.S. at 46).

Bahlul’s argument that his statutory conspiracy conviction

falls beyond the law of nations amounts to nothing more than

a repackaging of his Define and Punish Clause argument.

The error—if any—is just as far from plain under Article III

as it is under Article I.

Second, Bahlul contends that his conviction violated his

right to a trial by jury. Bahlul is correct that Article III,

Section 2, Clause 3 of the Constitution provides that “[t]he

Trial of all Crimes, except in Cases of Impeachment, shall be

43

by Jury.” But if any error occurred, it was not plain or

obvious.

To begin with, no established precedent even extends the

jury trial right to non-citizens being held outside the United

States’ sovereign territory. In Boumediene v. Bush, 553 U.S.

723 (2008), the Supreme Court for the first time extended

constitutional protection to an alien at Guantanamo Bay, id. at

795. That holding, however, was “explicitly confined * * *

‘only’ to the extraterritorial reach of the Suspension Clause,”

and expressly “disclaimed any intention to disturb existing

law governing the extraterritorial reach of any constitutional

provisions, other than the Suspension Clause.” Rasul v.

Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (quoting

Boumediene, 553 U.S. at 795). And it is settled that certain

other constitutional provisions do not protect aliens outside

the sovereign United States. See, e.g., United States v.

Verdugo-Urquidez, 494 U.S. 259, 261 (1990) (the Fourth

Amendment does not apply to the search and seizure of

property owned by a nonresident alien and located abroad);

Kiyemba v. Obama, 555 F.3d 1022, 1026 & n.9 (D.C. Cir.

2009) (Due Process Clause of Fifth Amendment does not

apply to aliens at Guantanamo), vacated, 559 U.S. 131 (2010)

(per curiam), reinstated on remand, 605 F.3d 1046 (D.C. Cir.

2010) (per curiam), cert. denied, 563 U.S. 954 (2011).

If anything, precedent undermines Bahlul’s claim. In

Quirin, the Supreme Court held that Nazi saboteurs had no

right to trial by jury, explaining that “trial by a jury of the

vicinage where the crime was committed” was a “procedure[]

unknown to military tribunals, which are not courts in the

sense of the Judiciary Article.” 317 U.S. at 39. Article III’s

Jury Trial Clause, the Supreme Court elaborated, “preserve[d]

unimpaired trial by jury in all those cases in which it had been

recognized by the common law.” Id. But it did not go so far

44

as “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.

Bahlul contends that, under Quirin, the jury-trial right

hinges on whether a charge was triable by jury at common

law, not whether the charge was also properly tried before the

military commission. Pet. Br. 27; Oral Arg. Tr. 15–16. The

sabotage charge in Quirin did not entail a jury trial right at

common law, but conspiracy did. See Callan v. Wilson, 127

U.S. 540, 549 (1888).

Subsequent precedent indicates otherwise. See Whelchel

v. McDonald, 340 U.S. 122, 127 (1950) (“The right to trial by

jury guaranteed by the Sixth Amendment is not applicable to

trials by courts-martial or military commission.”); Sanford v.

United States, 586 F.3d 28, 35 (D.C. Cir. 2009) (“[T]he Sixth

Amendment right to a criminal jury trial does not, itself, apply

to the military.”); cf. Granfinanciera S.A. v. Nordberg, 492

U.S. 33, 53 (1989) (“[I]f Congress may assign the

adjudication of a statutory cause of action to a non-Article III

tribunal, then the Seventh Amendment poses no independent

bar to the adjudication of that action by a nonjury

factfinder.”). There accordingly is nothing plain or obvious

about Bahlul’s entitlement to a trial by jury.

Third, Bahlul argues that the First Amendment’s free

speech guarantee forecloses a conviction for his political

speech, namely the al Qaeda recruitment video he created

about the terrorist attack on the USS Cole. Pet. Br. 38, 40,

Bahlul II, 2014 WL 3962849. As with Bahlul’s claimed jury-

trial right, no governing precedent extends First Amendment

protection to speech undertaken by non-citizens on foreign

soil, so no plain error occurred.

45

What is settled, moreover, is that the First Amendment

offers no shield to speech like Bahlul’s that is “directed to

inciting or producing imminent lawless action and * * * [is]

likely to incite or produce such action.” Holder v.

Humanitarian Law Project, 561 U.S. 1, 43–44 (2010)

(alterations omitted; quoting Brandenburg v. Ohio, 395 U.S.

444, 447 (1969) (per curiam)); see also Bahlul, 820

F. Supp. 2d at 1249 (Bahlul’s USS Cole recruitment video

was “aimed at inciting viewers to join al Qaeda, to kill

Americans, and to cause destruction.”).

Fourth, Bahlul argues that the 2006 Act violates the Fifth

Amendment’s guarantee of equal protection because it

authorized trials before a military commission for alien enemy

combatants, but not for enemy combatants who are U.S.

citizens. The short answer is that no relevant precedent

plainly or clearly supports the application of equal protection

principles in this law-of-war context to foreign enemy

combatants.

V

In sum, I would review Bahlul’s constitutional challenges

only for plain error. Under that standard, I would hold that

his conviction for conspiracy under the 2006 Act by a law-of-

war military commission did not plainly exceed Congress’s

power under Article I’s Define and Punish Clause or trench

upon Article III’s assignment of the judicial power to federal

courts. Nor did his conviction violate any of the other

constitutional protections Bahlul invokes. I accordingly

concur in the judgment affirming Bahlul’s conviction.

WILKINS, Circuit Judge, concurring: I agree with much of

the reasoning in section III of Judge Millett’s opinion, but my

view of this case differs in two ways. First, I do not believe a

plain error standard applies. For the reasons set forth in the

2015 panel opinion, Bahlul cannot forfeit his structural

Article III claim. See Al Bahlul v. United States, 792 F.3d 1,

3-7 (D.C. Cir. 2015), vacated by order granting rehearing en

banc, Al Bahlul v. United States, No. 11-1324 (D.C. Cir. Sept.

25, 2015); see also Commodity Futures Trading Comm’n v.

Schor, 478 U.S. 833, 850-51 (1986). “Every extension of

military jurisdiction is an encroachment on the jurisdiction of

the civil courts,” Bahlul, 792 F.3d at 5 (quoting Reid v.

Covert, 354 U.S. 1, 21 (1957) (plurality)), meaning Bahlul’s

challenge “goes to the heart of the judiciary’s status as a

coordinate branch of government,” id. at 6. Whether his

conspiracy conviction falls within the Article III exception for

law-of-war military commissions should be a question for de

novo review.

The second reason I write separately is because there is

no constitutional violation under a de novo standard.

“Embedded in the traditional rules governing constitutional

adjudication is the principle that a person to whom a statute

may constitutionally be applied will not be heard to challenge

that statute on the ground that it may conceivably be applied

unconstitutionally to others, in other situations not before the

Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973);

see also New York v. Ferber, 458 U.S. 747, 767 (1982).

Accordingly, to review Bahlul’s claim, we must test the

premise of his contention as applied to him. His particular

conviction is far from one for ordinary, inchoate conspiracy.

An examination of the record shows Bahlul was really

convicted of an offense tantamount to substantive war crimes

under a Pinkterton theory of liability. It is not that “any delta

between his conspiracy offense and those offenses that

international law proscribes is too narrow to rise to the level

of plain constitutional error.” Millett Op. 32. There is no

2

delta. The government proved beyond a reasonable doubt that

Bahlul knowingly took part in al-Qaeda’s plan on September

11, 2001 to murder American civilians. His statutory

conspiracy conviction does not violate international law,

which recognizes what is essentially Pinkerton liability, and it

therefore comports with Article III. See Bahlul, 792 F.3d at

22 (“The international law of war limits Congress's authority

because the Constitution expressly ties that authority to ‘the

Law of Nations.’”) (quoting U.S. CONST. art. I, § 8, cl. 10).

I.

Bahlul attacks his conviction for conspiracy under

Section 950v(b)(28) of the 2006 Military Commission Act

(“2006 MCA”), Pub. L. No. 109-366, 120 Stat. 2600. He

alleges that the MCA conspiracy crime violates Article III

because the prosecution of inchoate conspiracy violates

international law. In other words, Bahlul mounts a facial

challenge to the statute, and in so doing assumes that his

conviction in fact implicates inchoate conspiracy. But we

cannot take Bahlul at his word. Instead, we must scrutinize

the statute, and then examine the specific facts of his

conviction to see whether it actually bears on the

constitutional principle asserted. See United States v. Stevens,

559 U.S. 460, 474 (2010); Vill. of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982).

In line with decades of express Supreme Court instruction in

this regard, we must treat this case as an as-applied challenge.

And when we ask ourselves whether Bahlul was really

prosecuted for inchoate conspiracy, the answer is clearly no.

This framework of examining Bahlul’s constitutional

challenge to his MCA conviction “[b]y focusing on the

factual situation before us” is long-accepted practice. Ferber,

458 U.S. at 768; see also Sabri v. United States, 541 U.S. 600,

3

609 (2004); Chapman v. United States, 500 U.S. 453, 467

(1991); Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S.

469, 484-85 (1989); N.Y. State Club Ass’n, Inc. v. City of

N.Y., 487 U.S. 1, 11 (1988); Vill. of Hoffman Estates, 455

U.S. at 495 n.7; United States v. Mazurie, 419 U.S. 544, 550

(1975); Broadrick, 413 U.S. at 610; United States v. Powell,

423 U.S. 87, 92 (1975).

It is by now a maxim that a facial attack on a criminal

statute simply cannot prevail where the law is constitutional

as applied to a defendant’s own conduct. See Schall v.

Martin, 467 U.S. 253, 268 n.18 (1984) (“[O]utside the limited

First Amendment context, a criminal statute may not be

attacked as overbroad.”) (citing Ferber, 458 U.S. 747); see

also Holder v. Humanitarian Law Project, 561 U.S. 1, 20

(2010) (“[A] plaintiff who engages in some conduct that is

clearly proscribed cannot complain of the vagueness of the

law as applied to the conduct of others.”) (citing Vill. of

Hoffman Estates, 455 U.S. at 495). The Supreme Court has

often cautioned that “[f]acial challenges of this sort are

especially to be discouraged,” Sabri, 541 U.S. at 609, and

“[t]he fact that [a criminal statute] might operate

unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid.” 1

1

There is some controversy in recent years about whether the

Salerno standard universally applies. See Hodge v. Talkin, 799

F.3d 1145, 1156 (D.C. Cir. 2015) (“[T]he Court has also indicated

that the standard for facial invalidity may be less stringent in some

situations, instead turning on whether the statute lacks any ‘plainly

legitimate sweep.’” (quoting Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 (2008))). At the very least,

“all agree that a facial challenge must fail where the statute has a

plainly legitimate sweep,” id. at 450 (internal quotations marks

omitted), a standard Bahlul’s conviction necessarily survives given

that the facts of his own case do not violate Article III. See also id.

4

United States v. Salerno, 481 U.S. 739, 745 (1987). “Indeed,

this is why facial constitutional challenges [have been] . . .

unsuccessful as defenses to criminal prosecutions for non-

expressive conduct.” 2 Coleman v. DeWitt, 282 F.3d 908, 914

n.3 (6th Cir. 2002).

While Bahlul attempts to deflect attention from his own

circumstances by erecting a straw man, it is not our job to

answer the abstract question of whether prosecuting inchoate

conspiracy violates our separation of powers – we do not even

examine whether the elements of Section 950v(b)(28)

generally equate to a prosecution for inchoate conspiracy.

Rather, we examine whether the acts committed and proven in

the course of this specific prosecution really equate with

inchoate conspiracy. This jurisprudential approach does not

“violate basic principles of criminal justice,” as the dissent

urges. See Dissenting Op. at 53. We employ it not just with

regard to criminal statutes, but throughout constitutional

adjudication, including in the Article III context. We treat a

facial separation of powers challenge “as if it were an as-

applied challenge,” and reject it where the particular

application of the statute at issue was constitutional. U.S. ex

rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1235 & n.7 (D.C.

Cir. 2012) (citing Texas v. Johnson, 491 U.S. 397, 403 n.3

(1989)); see also Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 537 F.3d 667, 670 (D.C. Cir. 2008) (“To

succeed in its facial challenge to Title I of the Act under the

(“[W]e must be careful not to go beyond the statute’s facial

requirements and speculate about ‘hypothetical’ or ‘imaginary’

cases.”).

2

As Judge Millett’s opinion points out, the First Amendment

context is not implicated here by Bahlul’s Article III challenge. See

Millett Op. 37.

5

Appointments Clause and separation of powers, the Fund

bears a heavy burden to show that the provisions of which it

complains are unduly severe in all circumstances and cannot

be constitutionally applied.”) (footnote omitted), aff’d in part,

rev’d in part and remanded, 561 U.S. 477 (2010).

Evaluated in this way, Bahlul’s facial challenge must fail

because his own conviction does not violate Article III. See

infra Part III. He was not convicted of inchoate conspiracy.

It does not matter that Bahlul framed his argument as a facial

attack; an appellant cannot change our approach to deciding

constitutional issues “by concession, inadvertence, poor oral

advocacy or otherwise.” 3 Millett Op. 22 (quoting Bahlul, 792

F.3d at 32 n.3 (Henderson, J., dissenting)). Waiver and

forfeiture rules have no application in this regard. Nor are

there any “serious due process concerns” raised by this

approach to Bahlul’s collateral attack, brought at t

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