FOR THE DISTRICT OF COLUMBIA CIRCUIT Docket … [Oral argument schedule d for October 22, 2014] FOR THE DISTRICT OF COLUMBIA CIRCUIT Docket No. 11-1324 ALI HAMZA SULIMAN AHMAD AL BAHLUL,

11-1324 [Oral argument scheduled for October 22, 2014]

FOR THE DISTRICT OF COLUMBIA CIRCUIT Docket No. 11-1324

ALI HAMZA SULIMAN AHMAD AL BAHLUL,

v.

UNITED STATES,

Petitioner,

Respondent.

APPEAL FROM COURT OF MILITARY COMMISSION REVIEW (CMCR-09-001)

REPLY BRIEF OF PETITIONER

MAJ Todd E. Pierce, Michel Paradis JA, U.S. Army (Ret.) Mary R. McCormick Senior Fellow 1620 Defense Pentagon Univ. of Minnesota Washington, DC 20301-1620 Human Rights Center [email protected] Mondale Hall, N-120 TEL: 1.703.696-9490 x115 229-19th Avenue South FAX: 1.703.696-9575 Minneapolis, MN 55455 Counsel for Petitioner

USCA Case #11-1324 Document #1515682 Filed: 10/06/2014 Page 1 of 44

i

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

I. PARTIES AND AMICI APPEARING BELOW

The parties and amici who appeared before the Court of Military Commission Review in connection with this appeal were:

1. Ali Hamza Ahmad Suliman al Bahlul, Appellant

2. United States of America, Appellee

3. Amicus Curiae the Office of the Chief Defense Counsel, Col Peter Masciola, USAF (on brief)

4. Amicus Curiae Robert David Steele and Others in the United States Intelligence Community, McKenzie Livingston (on brief)

5. Amicus Curiae Historians, Political Scientists and Constitutional Law Professors, Sarah Paoletti (on brief)

6. Amicus Curiae National Institute of Military Justice, Michelle Lindo (on brief)

7. Amicus Curiae Montana Pardon Project, Jeffrey Renz (on brief)

8. Amicus Curiae Human Rights Committee of the American Branch of�the International Law Association, Jordan J. Paust (on brief)

II. PARTIES AND AMICI APPEARING IN THIS COURT

1. Ali Hamza Ahmad Suliman al Bahlul, Petitioner

2. United States of America, Respondent

3. Amicus Curiae Int’l Law Scholars, David Weissbrodt (on brief)

4. Amicus Curiae Retired Military and Intelligence Officers, McKenzie Livingston (on brief)

5. Amicus Curiae The National Institute of Military Justice, Steve Vladeck (on brief)


ii

6. Amicus Curiae First Amendment Historians, Jeffrey Renz (on brief)

7. Amicus Curiae Historians, Political Scientists and Constitutional Law Professors, Sarah Paoletti (on brief)

8. Amicus Curiae David Glazier & Gary Solis, John Summers (on brief)

9. Amicus Curiae Constitutional Accountability Center, Elizabeth Wydra (on brief)

10. Amicus Curiae Former Government Officials, Military Lawyers & Scholars, Peter Marguiles (on brief)

11. Amicus Curiae Washington Legal Foundation, Richard Samp (on brief)

III. RULINGS UNDER REVIEW

This appeal is from a decision of the United States Court of Military Commission Review in United States v. Ali Hamza Ahmad Suliman al Bahlul, CMCR 09-001(en banc September 9, 2011). The decision is reported at 820 F.Supp.2d 1141 (C.M.C.R. 2011).

IV. RELATED CASES

This case has not previously been filed with this court or any other court. Counsel are aware of no other cases that meet this Court’s definition of related.

Dated: October 6, 2014 By: /s/ Michel Paradis

Counsel for Petitioner


iii

TABLE OF CONTENTS

Table of Authorities ............................................................................................... iv

Glossary of Terms ................................................................................................. vii

Summary of Argument ............................................................................................ 1

Argument .................................................................................................................. 3

I. The Government Forfeited Any Claim to Plain Error Review. ......................... 3

II. Congress Exceeded its Power Under the Define & Punish Clause by Attempting to Transform Conspiracy into a War Crime. .................................. 5

A.Subject-Matter Jurisdiction is Reviewed De Novo. ................................ 5

B.Congress’ Power to Codify War Crimes Derives Exclusively from the Define & Punish Clause. .......................................................... 7

C.Spying and Aiding the Enemy Support the Traditional Scope of Congress’ Power Under the Define & Punish Clause. ............................ 9

D.Conspiracy is Unprecedented as a Stand-Alone War Crime. ............... 13

E.The Government’s Alternative Reliance on the Necessary & Proper Clause is also Contrary to Settled Law. ..................................... 18

III. Conspiracy is a Domestic-Law Crime Triable Only in the Courts of Law. .... 19

A.Compliance with the Jurisdictional Limits Imposed by Article III is Reviewed De Novo. ........................................................................... 19

B.Conspiracy is Triable Only by the Courts of Law. ............................... 21

IV. The Government Cannot Put Thoughts, Beliefs, and Ideals on Trial. ............. 25

A.Abridgments of the First Amendment are Reviewed De Novo. ........... 25

B.The Government Cannot Disregard the First Amendment when it Prosecutes the Production of a Film. ..................................................... 26

V. Segregating the Criminal Justice System is Unconstitutional. ........................ 28

A.Discrimination Based on Nationality is Reviewed De Novo. ............... 28

B.De Jure Segregation is Subject to Strict-Scrutiny. ................................ 30

C.Under Any Standard, the De Jure Segregation Here was Invidious, Irrational, and Unconstitutional. .......................................... 32

Conclusion ............................................................................................................... 34

Certificate of Service .............................................................................................. 36


iv

TABLE OF AUTHORITIES

Petitioner places primary reliance on authorities marked with an *

Cases

Baskin v. Bogan, 2014 WL 4359059 (7th Cir. 2014) ................................... 30, 33

Bond v. United States, 131 S.Ct. 2355 (2011) ..................................................... 27

Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) ....................................... 25

*Callan v. Wilson, 127 U.S. 540 (1888) ....................................................... 23, 24

CFTC v. Schor, 478 U.S. 833 (1986) .................................................................... 19

Chan Gun v. United States, 9 App. D.C. 290 (D.C. Cir. 1896) ........................... 30

Citizens United v. FEC, 558 U.S. 310 (2010) ..................................................... 26

Colepaugh v. Looney, 235 F.2d 429 (10th Cir.1956) .......................................... 14

Comm. v. Kingsbury, 5 Mass. 106 (Mass. 1809) ................................................. 16

Curtis Pub. v. Butts, 388 U.S. 130 (1967) ........................................................... 25

DKT Mem’l Fund v. U.S.A.I.D., 887 F.2d 275 (D.C. Cir.1989) .......................... 27

Eisenstadt v. Baird, 405 U.S. 438 (1972) ............................................................ 27

Ex parte Milligan, 4 Wall. 2 (1866) ............................................................... 7, 23

*Ex parte Quirin, 317 U.S. 1 (1942) ................ 1, 8, 10, 13, 14, 15, 21, 22, 23, 24

Ex parte Siebold, 100 U.S. 371 (1879) .................................................................. 5

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ................................. 26

Freytag v. C.I.R., 501 U.S. 868 (1991) ................................................................ 20

Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ...................................................... 20

Griffin v. Illinois, 351 U.S. 12 (1956) .................................................................. 33

*Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ................................ 7, 15, 18, 20, 24

Hamdan v. United States, 696 F.3d 1238 (2012) .................................................. 8

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................................................ 13

Iannelli v. United States, 420 U.S. 770 (1975) .................................................... 16

In re Heff, 197 U.S. 488 (1905) ............................................................................. 5

In re Yamashita, 327 U.S. 1 (1946) ....................................................................... 8

Kuretski v. C.I.R., 755 F.3d 929 (D.C. Cir. 2014) ............................................... 20


v

McLaughlin v. Florida, 379 U.S. 184 (1964) ...................................................... 33

Northern Pipeline v. Marathon Pipeline, 458 U.S. 50 (1982) ............................ 25

O’Callahan v. Parker, 395 U.S. 258 (1969) .......................................................... 6

Palmore v. United States, 411 U.S. 389 (1973) .................................................. 24

Patton v. United States, 281 U.S. 276 (1930) ...................................................... 19

Peyton v. Rowe, 391 U.S. 54 (1968) .................................................................... 21

Plessy v. Ferguson, 163 U.S. 537 (1896) ............................................................ 31

Plyler v. Doe, 457 U.S. 202 (1982) ..................................................................... 30

Quercia v. United States, 289 U.S. 466 (1933) ................................................... 28

Reid v. Covert, 354 U.S. 1 (1957) ........................................................................ 20

Snyder v. Phelps, 131 S.Ct. 1207 (2011) ............................................................. 28

Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014) ..............................................3, 4

*Toth v. Quarles, 305 U.S. 11 (1955) ..................................................... 18, 20, 24

United States v. Bahlul, 2014 WL 3437485 (2014) ............................. 3, 8, 12, 17

United States v. Baucum, 80 F.3d 539 (D.C. Cir. 1996) ....................................... 5

United States v. Broce, 488 U.S. 563 (1989) ......................................................... 5

United States v. Cotton, 535 U.S. 625 (2002) ................................................ 6, 21

United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004) ..................4, 5

United States v. Garcia, 5 C.M.A. 88 (C.M.A. 1954) ......................................... 28

United States v. Melanson, 53 M.J. 1 (C.A.A.F. 2000) ....................................... 28

United States v. Nueci-Pená, 711 F.3d 191 (1st Cir. 2013) .................................. 5

United States v. Prado, 743 F.3d 248 (7th Cir. 2014) ........................................... 4

United States v. Rahman, 189 F.3d 88 (2d Cir. 1998) ......................................... 27

United States v. Robel, 389 U.S. 258 (1967) ......................................................... 2

United States v. Saac, 632 F.3d 1203 (11th Cir. 2011) ......................................... 6

United States v. Sheehan, 512 F.3d 621 (D.C. Cir. 2008) ...................................... 29

United States v. Workcuff, 422 F.2d 700 (D.C. Cir. 1970) .................................. 29

Waldman v. Stone, 698 F.3d 910 (6th Cir. 2012) ................................................ 20

*Wong Wing v. United States, 163 U.S. 228 (1896) ........................................... 31


vi

Statutes

12 Stat. 340 (1862) ............................................................................................... 31

14 Stat. 471 (1867) ............................................................................................... 17

2 Stat. 359 (1806). ................................................................................................ 31

27 Stat. 25 (1892) ................................................................................................. 31

Journals of the Continental Congress, 1774-1789 (GPO 1904) .................... 9, 11

Executive Branch Materials

DoD Directive 2310.01E (Aug. 19, 2014) ............................................................. 8

Ex parte Quirin, Case Nos. 1-7, Brief for Respondents (Jul. 29, 1942).............. 14

Manual for Courts-Martial .................................................................................... 6

Military Commissions, 11 Op. Att’y Gen. 297 (1865) ................................. 11, 16

Rules for Military Commissions ............................................................................ 6

Miscellaneous

Cheney Hyde, Aspects of the Saboteur Cases, 37 Am.J.Int’l L. 81 (1943) ........ 10

Digest of the Opinions of the Judge Advocates General (1912) ......................... 14

George Davis, Outlines of International Law (1887) .......................................... 11

Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat. 2277 .................................... 11

Harry Edwards & Linda Elliot, Federal Courts – Standards of Review (West 2007) ............................................................................................... 25

Henry Halleck, International Law (1908) ........................................................... 11

James Madison, The Resolution of Virginia in Opposition to the Alien and Sedition Laws (1798) ................................................................................. 25

Lassa Oppenheim, International Law (1921) ......................................... 11, 12, 15

M. de Vattel, The Law of Nations (1758) ..................................................... 11, 12

Richard Baxter, So-Called ‘Unprivileged Belligerency’; Spies, Guerrillas, and Saboteurs, 28 Brit.Y.B.Int’l L. 323 (1951) ........................................ 10

United States v. Surratt, Case No. 4731 (D.C.Sup.Ct., Feb. 4, 1867) ................. 17

William Winthrop, Military Law & Precedents (1920) ............... 7, 11, 15, 18, 31


vii

GLOSSARY OF TERMS

2006 Act ......................... Military Commissions Act of 2006, 120 Stat. 2600 (2006) App. ........................................................ Petitioner’s Appendix, dated Aug. 13, 2014 Bahlul .......... United States v. Bahlul, 2014 WL 3437485 (D.C. Cir. 2014) (en banc)

Baskin ....................................... Baskin v. Bogan, 2014 WL 4359059 (7th Cir. 2014)

CMCR ................................................... U.S. Court of Military Commission Review

Halleck ...................................................... Henry Halleck, International Law (1878)

Oppenheim ........................................... Lassa Oppenheim, International Law (1906)

Resp. ........................................................ Brief for Respondent, dated Sept. 18, 2014

R.M.C. …………………….U.S. Dep’t of Def., Manual for Military Commissions, Part 2, Rules for Military Commissions (2012) Supp.App. ...........................Petitioner’s Supplemental Appendix, dated Oct. 6, 2014 Vattel .......................................................... M. de Vattel, The Law of Nations (1758) Winthrop .............................. William Winthrop, Military Law & Precedents (1920)


1

SUMMARY OF ARGUMENT

Petitioner, Ali al Bahlul (“Bahlul”), was convicted by a law-of-war military

commission in Guantanamo of the domestic crime of inchoate conspiracy. This

conviction must be vacated because stand-alone conspiracy charges fail to meet the

two necessary conditions the Constitution places on law-of-war commissions’

subject-matter jurisdiction. First, as the government concedes, conspiracy is not an

offense under that “branch of international law” called the law of war. Ex parte

Quirin, 317 U.S. 1, 29 (1942). And second, conspiracy is a well-established

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

Because conspiracy is neither a war crime nor historically exempt from the jury

trial requirement, its prosecution cannot be diverted from the courts of law.

The government asks this Court to sustain Bahlul’s conviction by replacing

Quirin with a new rule that allows the Department of Defense to prosecute any

crime as a general incident of the war powers. This argument is unmoored from

any enumerated power and has no meaningful limit. It is also irreconcilable with

precedent and the government provides no good authority to support it.

The government’s primary argument for this new rule is the inference it

draws from the historic use of military tribunals to try spying and aiding the enemy,

which, it claims, have “never” been war crimes under international law. This

premise is provably wrong. The most renowned international law scholars in


2

history considered these offenses war crimes, as the Supreme Court did in Quirin.

Moreover, these two offenses have been discrete exceptions to the common law

jury trial requirement since the Revolutionary War. Spying and aiding the enemy

have therefore historically satisfied both Quirin conditions. They do not require –

or justify – a new rule and certainly not one that makes “the phrase ‘war power’ …

a talismanic incantation to support any exercise of congressional power which can

be brought within its ambit.” United States v. Robel, 389 U.S. 258, 263 (1967).

The government’s demand for a broad new “war powers” exception to

Article III betrays what is at sake in this case. It asks this Court to endorse its use

of ad hoc trial chambers that are operated by the military, ungoverned by the Rules

of Evidence, regularly conducted in secret, and openly compete with the courts of

law for jurisdiction over wholly domestic crimes. It demands this endorsement

without offering any limiting principle. And it ignores the danger that this case will

become the landmark precedent for making the courts optional whenever the

political branches invoke the war powers.

Lastly, even if the trial of domestic crimes like conspiracy are now exempt

from Article III, this Court should not take the further step and hold that they are

also exempt from the First Amendment. And even under the war powers, Congress

cannot segregate the criminal justice system and deny equal justice under law for

no other purpose than discriminating on the basis of nationality.


3

ARGUMENT

I. THE GOVERNMENT FORFEITED ANY CLAIM TO PLAIN ERROR REVIEW.

The government’s arguments depend on persuading this Court to review the

remaining issues in this case only for plain error. It contends this is warranted by

Bahlul’s alleged forfeiture of these issues at trial. There are specific reasons why

plain error is both inapplicable and inappropriate to each of the questions now

under review. But there is an overarching reason as well: the government’s

“arguments come too late.” Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014).

The government waited many years, multiple rounds of briefing, and two

oral arguments before invoking forfeiture or asking for plain error review. In its

initial briefing before the CMCR, the government’s only procedural objection was

that Bahlul’s appointed military lawyer purportedly waived his ex post facto, free

speech, equal protection, and bill of attainder objections.1 Supp.App. 134.

As this Court has held, “waiver and forfeiture are not the same[.]” United

States v. Bahlul, 2014 WL 3437485 at *4 n.6 (D.C. Cir. 2014) (en banc) (“Bahlul”).

1 While the government no longer argues for waiver, this omnibus waiver was done in Bahlul’s absence and before he was notified that his pro se status had been revoked. This lawyer never formed an attorney-client relationship with Bahlul and Bahlul repeatedly rejected this lawyer. The CMCR accordingly declined to accept this lawyer’s assertion of waiver as preclusive of its review and, instead, reached all of the issues presented to it de novo. United States v. Bahlul, 820 F.Supp.2d 1141, 1258 (CMCR 2011).


4

Over the two years Bahlul’s appeal was pending below, the government never

asserted trial-level forfeiture or sought plain error review on any issue. “By failing

to argue forfeiture or a failure to properly plead the claims before the [CMCR], the

[government] has—in a word—forfeited [its] forfeiture argument here.” Solomon,

763 F.3d at 13; see also United States v. Prado, 743 F.3d 248, 252 (7th Cir. 2014)

(“[W]here the government fails to assert that an argument was forfeited and fails to

identify the standard of review appropriate for such a forfeiture, the issue is treated

as if the objection were raised below and the standard of review appropriate to

such an issue controls.”).

Even if this Court is willing to liberally construe the government’s assertion

of waiver below, it waived any waiver argument it might have made on the first

two issues now before this Court. Before the CMCR, Bahlul argued that “none of

the charges are war crimes triable by military commission” because they are

Article I tribunals, whose jurisdiction is constitutionally limited to war crimes, and

Congress’ power to proscribe war crimes is limited by the Define & Punish Clause.

Supp.App. 126-30. The government stipulated that this challenge to the charges

“alleges a ground for relief that has not been waived.” Supp.App. 134. The

government has “thus waived its waiver argument on that point.” United States v.

Delgado-Garcia, 374 F.3d 1337, 1340 (D.C. Cir. 2004).


5

II. CONGRESS EXCEEDED ITS POWER UNDER THE DEFINE & PUNISH CLAUSE BY ATTEMPTING TO TRANSFORM CONSPIRACY INTO A WAR CRIME.

A. Subject-Matter Jurisdiction is Reviewed De Novo.

As noted above, the government stipulated that Bahlul’s argument under the

Define & Punish Clause should be reviewed de novo. It nevertheless now contends

that under United States v. Baucum, 80 F.3d 539 (D.C. Cir. 1996), objections that

turn on Congress’ legislative power are not jurisdictional and therefore forfeitable.

Resp. 26. The statute in Baucum, however, was about sentencing and did “not

involve the power of the government ‘to hale into court.’” Id. at 543. This case, by

contrast, presents “a claim that – judged on its face – [alleges that] the charge is

one which the State may not constitutionally prosecute.” United States v. Broce,

488 U.S. 563, 575 (1989) (quotations omitted; original emphasis); Delgado-Garcia,

374 F.3d at 1343 (same); see also In re Heff, 197 U.S. 488, 505-06 (1905)

(challenges to Congress’ power to enact crimes are jurisdictional); Ex parte

Siebold, 100 U.S. 371, 376-77 (1879) (“An offence created by [the statute] is not a

crime. A conviction under it is not merely erroneous, but is illegal and void, and

cannot be a legal cause of imprisonment.”).

The government asks for a different rule based on the First Circuit’s decision

in United States v. Nueci-Pená, 711 F.3d 191 (1st Cir. 2013). Resp. 26. As an

initial matter, Nueci-Pená split with the Eleventh Circuit, which held that


6

challenges under the Define & Punish Clause are jurisdictional. United States v.

Saac, 632 F.3d 1203, 1208 (11th Cir. 2011). But even assuming Nueci-Pená was

correctly decided, the issue here is not just whether Congress can create a crime,

but whether it can create an Article I tribunal in which to prosecute it.

The legal sufficiency of the charges in such a case goes directly to whether

the tribunal itself is lawfully constituted, which is well established in military law

as an objection that may be raised at any time. Rules for Military Commissions 905

& 907; Manual for Courts-Martial, App. 21 ¶ 68(b)(3) (2012) (“failure to allege an

offense” is an objection “to the failure of a specification to allege any offense

triable by court-martial” or that the charge is not “an offense of which a court-

martial may take cognizance.”). The starkest example of this is O’Callahan v.

Parker, 395 U.S. 258 (1969) overruled by Solorio v. United States, 483 U.S. 435

(1987), which held that courts-martial cannot constitutionally try service-members

for non-service-connected offenses. O’Callahan was decided on habeas, despite

the fact that the petitioner failed to raise this challenge at trial or on direct appeal

twelve years earlier. Quirin, Yamashita, and Hamdan were also habeas challenges

to a military tribunal’s lack of “power to adjudicate the case.” United States v.

Cotton, 535 U.S. 625, 630 (2002) . This Court’s review of that same challenge on

direct review here is, therefore, de novo.


7

B. Congress’ Power to Codify War Crimes Derives Exclusively from the Define & Punish Clause.

The government’s principle claim is that Congress could have looked

beyond the Define & Punish Clause to the war powers more generally as its source

of legislative authority. If that were true, Congress’ power to create and divert

purely domestic crimes for trial by military tribunal would be its only legislative

power to have no limit. Unsurprisingly, no good legal authority supports it.

The government tries to obscure this fact with selective editing. Its primary

citation is Winthrop’s reference to the war powers “[i]n general” as the “original

sanction” for military commissions. Resp. 26-27. The government truncates this

quote to eliminate Winthrop’s immediately preceding sentence, which states that

when Congress “enacted that spies and guerillas should be punishable by sentence

of military commission, such commission may be regarded as deriving its authority

from [the Define & Punish Clause].” William Winthrop, Military Law &

Precedents 831 (1920), App. 41.

Such references to the war powers as the “original sanction” for military

commissions merely describe a threshold condition for the military’s authority to

try non-service members at all. Military commissions are tribunals of “military

necessity.” Hamdan v. Rumsfeld, 548 U.S. 557, 590 (2006). The activation of the

war powers simply marks this threshold because “[a]s necessity creates the rule, so

it limits its duration.” Ex parte Milligan, 4 Wall. 2, 127 (1866). When all of the


8

relevant legal authorities move from this threshold condition to the specific

question of a law-of-war military commission’s subject-matter jurisdiction, they

uniformly treat it, solely and exclusively, as answered by the scope of the Define &

Punish Clause. Quirin, 317 U.S. at 28; In re Yamashita, 327 U.S. 1, 7 (1946).

The government strains to avoid this in various ways that all reduce to its

continued demand that this Court redefine the “law of war” as a species of

domestic law. The overwhelming body of authority against this argument is set out

in our opening brief, Pet.Br. 17-19, Judge Rogers’ separate en banc opinion,

Bahlul, at *27, as well as the panel decision in Hamdan v. United States, 696 F.3d

1238, 1248-49 & n. 9 (2012). One important authority to add is the Department of

Defense’s new directive on detainee operations, which was issued after Bahlul’s

original brief was filed. DoD Directive 2310.01E (Aug. 19, 2014), Supp.App. 111-

124. Its glossary defines the “law of war” as:

The part of international law that regulates the conduct of hostilities and the protection of victims of armed conflict in both international and non-international armed conflict and occupation, and that prescribed the rights and duties of neutral, non-belligerent and belligerent states. It is often called the “law of armed conflict” or “international humanitarian law,” and is specifically intended to address the circumstances of armed conflict. It encompasses all international law applicable to the conduct of military operations in armed conflicts that is binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party (e.g., the Geneva Conventions of 1949), and applicable customary international law.


9

Id. at 14, Supp.App. 124. The government does not mention this in its response,

nor has it explained why the law of war should mean something so fundamentally

different in the context of law-of-war prosecutions than it does in every other

circumstance where it is necessary to “comply with the law of war with respect to

the treatment of all detainees.” Id. at 2, Supp.App. 112.

C. Spying and Aiding the Enemy Support the Traditional Scope of Congress’ Power Under the Define & Punish Clause.

In arguing for its redefinition of the law of war, the government puts its

heaviest reliance on the historic use of military tribunals to try spying and aiding

the enemy offenses. The government contends, repeatedly, that “spying and aiding

the enemy … have never been international law of war offenses.” Resp. 20

(emphasis added). From this, it reasons that Congress’ power to proscribe law-of-

war offenses cannot spring solely from the Define & Punish Clause and, therefore,

must be drawn from the broad penumbra of the war powers.

The first problem with this argument is that it proves too much. Spying and

aiding the enemy stand apart as the two – and only two – categories of offenses

that Congress has made both generally applicable and triable by the military since

the Founding. Whatever their status under international law, they have had this sui

generis status in U.S. law since 1776. Journals of the Continental Congress, 1774-

1789, 1:111-23, 1:450 (GPO 1904) (enacting the first statutes on aiding the enemy


10

and spying respectively); Supp.App. 49-50. No one, until the government in this

case, has ever suggested that they sit atop a domestic law of war iceberg.

The government’s greater error, however, is in its characterization of the

historical status of spying and aiding the enemy under international law, which is

irreconcilable with Quirin’s holding that “[a]uthorities on International Law have

regarded [spies] as war criminals.” Quirin, 317 U.S. at 35 n.12; see also Cheney

Hyde, Aspects of the Saboteur Cases, 37 Am.J.Int’l L. 81, 90 (1943) (recognizing

that Quirin “imputes to the law of nations (or to the law of war as a part thereof)

the injunction against the act of spying.”).

The government supports its argument that these offenses were “never”

recognized in international law with a journal article written in 1951. Resp. 31

(citing Richard Baxter, So-Called ‘Unprivileged Belligerency’; Spies, Guerrillas,

and Saboteurs, 28 Brit.Y.B.Int’l L. 323 (1951)). This article reflects, indeed

crystalized, the post-war evolution in thinking about war criminality away from the

law of war’s historic regulation of “fair play” and gentlemanly duty toward its

contemporary focus on humanitarian conduct. This article even criticizes Quirin’s

holding that spies are “offenders against the laws of war” as lacking “support in

contemporary doctrine regarding such activities in wartime.” Id. at 330.

Regardless of this article’s scholarly merits, Quirin is the authoritative law

in this case. And regardless of whether spying’s status changed after the Second


11

World War, Quirin had a wealth of precedent and international legal authority

behind it in 1942. Lassa Oppenheim, International Law 2:223 (1921)

(“Oppenheim”) (“persons committing acts of espionage or war treason are – as will

be shown below – considered war criminals and may be punished[.]”), Supp.App.

53; Henry Halleck, International Law 1:628-29 (1908) (“Halleck”) (“The act of

spying is an offence against the laws of war alone; it is no crime in time of peace”),

Supp.App. 36-37; George Davis, Outlines of International Law 241 (1887)

(including spying within the “Crimes and Offences against the Laws of War” and a

“crime[] at International Law[.]”), Supp.App. 13-14; Winthrop, at 770 (“By the

law of nations the crime of a spy is punishable with death.”), Supp.App. 89; M. de

Vattel, The Law of Nations 375 (1758) (describing spying as a form of treachery),

Supp.App. 5; Military Commissions, 11 Op. Att’y Gen. 297, 312 (1865)

(“Infractions of the laws of nations are not denominated crimes, but offenses. …

[Acting as] a spy is an offense against the laws of war”); Hague Convention (IV)

Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907,

36 Stat. 2277, arts. 29-31 (regulating the punishment of spies). In fact, the very

first spying statute, passed in 1776, stated that spies should “suffer death according

to the law and usage of nations.” Supp.App. 49-50.

Historical international law scholarship also treated what is now called

“aiding the enemy” as a law-of-war offense, such that “war treason is a


12

comprehensive term for a number of acts hostile to the belligerent within whose

lines they are committed.” Oppenheim, at 2:226, Supp.App. 56; see also Halleck,

at 2:64 (discussing the punishment of “war traitors”), Supp.App 43. As this Court

noted, Bahlul, at *19, the offense of aiding the enemy derives from the rule of non-

intercourse, which was “the rule of international jurisprudence, which forbids all

intercourse and trade with the public enemy[.]” Halleck, at 2:156, Supp.App 47;

see also Vattel, at 400 n.179 (discussing the prohibition on intercourse between

enemies), Supp.App 5.

The government’s error is that it is applying modern international legal

theory anachronistically. Indeed, if spying and aiding the enemy were “never”

offenses under international law, there is no explanation for why they have been

given so much attention in so many international law treatises, written over many

centuries in many languages by scholars from many legal systems.

Modern developments in the law of war only “retrospectively cast doubt on

the constitutional validity of the most prominent military commission precedents in

our nation’s history,” Resp. 52, if one insists on this anachronism. If anything, it is

the government who needs to cast doubt on precedent, since their entire argument

depends on Quirin being wrongly decided in either one of two ways. Either the

Court was wrong when it held that law-of-war military commissions’ subject-

matter jurisdiction is limited to offenses “accepted as valid by authorities on


13

international law … as a rule or principle of the law of war.” Quirin, 317 U.S. at

36-37. Or it was wrong when it decided that spying met that standard.

Even if this Court could ignore Quirin, it has been given no good reason to

do so. While perhaps not the “Court’s finest hour,” Hamdi v. Rumsfeld, 542 U.S.

507, 569 (2004) (Scalia, J., dissenting), Quirin articulated a clear rule. By tying

Congress’ proscriptive power to the Define & Punish Clause, the Court not only

respected tradition, it ensured that customary international law would define

judicially manageable limits on the government’s ability to circumvent the courts.

The only limiting principle the government offers to replace Quirin is its own

willingness to invoke the war powers when prosecuting a crime that it wishes to

exempt from the rigors of a judicial trial. Given modern realities, that dangerous

principle provides no limit at all.

D. Conspiracy is Unprecedented as a Stand-Alone War Crime.

The government attempts to claim precedent in the military trials of the Nazi

Saboteurs, the Lincoln Assassins, and Ledger Grenfel. None of these supports its

effort to try the inchoate, extraterritorial conspiracy offense it brought here.


14

The Nazi Saboteurs. The government’s reliance on Quirin and Colepaugh v.

Looney, 235 F.2d 429, 433 (10th Cir.1956),2 is wholly superficial. In Quirin, the

Court held that it only had to find jurisdiction over one offense in order to defeat

the saboteurs’ collateral attack on habeas. Quirin, 317 U.S. at 46. After finding that

the charge of sabotage “plainly allege[d] a violation of the law of war,” id. at 36., it

did not matter what the remaining charges were.

The government itself mounted only a nominal defense of the conspiracy

charge. In its briefing, it provided a six-page, single-spaced appendix presenting its

arguments in support of the four charges at issue. Ex parte Quirin, Case Nos. 1-7,

Brief for Respondents, at 78-83 (Jul. 29, 1942); Supp.App. 104-110. Conspiracy is

relegated to the bottom of the last page, where the government offers two citations

and no substantive argument. Id. at 83, Supp.App. 110.

The first citation is to the Digest of the Opinions of the Judge Advocates

General 1071 (1912); Supp.App. 1-3. In its list of “offences against the laws and

usages of war,” the only conspiracy-type offense is “[c]onspiracy by two or more

to violate the laws of war by destroying life or property in aid of the enemy.” Id.

2 The government’s archival memorandum from then-Assistant Attorney General Clark does not add weight to this precedent. Clark filed this memorandum in his capacity as the prosecuting attorney in the Colepaugh case. David Glazier, The Misuse of History, 66 Baylor L. Rev. 295, 326-27 (2014). The only view of the Executive Branch it reflects, therefore, is a prosecutor’s litigation position.


15

(emphasis added). Like most of the others listed, this offense was a type of aiding

the enemy or “war treason,” which, like spying, applies only to hostile acts done

within the lines. Oppenheim, at 268-69; Supp.App. 63; Quirin, 317 U.S. at 23.

The second citation, discussed below, was the trial of the Lincoln Assassins.

Tellingly, the government cited this commission as only analogous authority, using

the “cf.” signal. In 1942, the need for this “cf.” signal would have been plain and

demonstrates why the government cannot rely on this case to establish

conspiracy’s status as a stand-alone war crime in 2014.

The Lincoln Assassins. As a threshold matter, the Lincoln Assassin trial

was not a pure law-of-war military commission. The District of Columbia, where

the offense and trial occurred, was under martial law and Winthrop cites this as an

example of a “hybrid” commission. Winthrop, at 839, n.5; Pet.Br. 13-14.

Even if it was a pure law-of-war military commission, the specifications

make clear that none of the defendants was tried for the stand-alone offense of

conspiracy. In the Nineteenth Century, it was common for the charge to state

general allegations and for the specification to state the substantive elements of the

offense. Winthrop, at 842; see Hamdan, 548 U.S. at 609 (plurality op.). In this

respect, the “charge” was more a statement of the case than a legally operative

averment of the accused’s criminality. The specifications against the Lincoln

assassins all alleged that they “aid[ed], abet[ted], and assist[ed] the said John


16

Wilkes Booth in the killing and murder of said Abraham Lincoln.” Supp.App. 90.

Some are also charged with “attempt[ing] to kill and murder” the Secretary of State

and “[lying] in wait for Andrew Johnson[.]” Supp.App. 77-78.

Under Nineteenth Century criminal law, there was a good reason not to

charge the assassins with the stand-alone offense of conspiracy. While now

forgotten, this was “a time when the contours of the law of conspiracy were in the

process of active formulation.” Iannelli v. United States, 420 U.S. 770, 781 (1975).

As a stand-alone offense, common law conspiracy was a misdemeanor that carried

a maximum two-year sentence. Id. Charging a conspiracy to commit a completed

felony meant that the defendant was charged, not with conspiring, but with the

joint perpetration of the underlying crime. Id. In fact, “an indictment that charged

conspiracy in terms indicating that the felony actually had been committed was

considered invalid.” Id. at 781, n.13; see also Comm. v. Kingsbury, 5 Mass. 106,

108 (Mass. 1809) (“a contrivance to commit a felony, and executing the

contrivance, cannot be punished as an offence distinct from the felony[.]”).

This is why Attorney General Speed does not even mention the word

“conspiracy” in his review of the Lincoln Assassins’ trial. Instead, he poses the

question presented as, “whether the persons charged with the offence of having

assassinated the President can be tried before a military tribunal, or must they be

tried before a civil court.” 11 Op. Att’y Gen. at 297 (emphasis added).


17

This is also why the identical language of “combine, confederate, and

conspire and agree together feloniously to kill and murder one Abraham Lincoln”

was not understood as alleging a stand-alone conspiracy offense when used in the

indictment against John Surratt, a member of the plot who was tried in federal

court in 1867. United States v. Surratt, Case No. 4731 (D.C.Sup.Ct., Feb. 4, 1867);

Supp.App. 100. Indeed, it could not have been. The federal conspiracy statute was

enacted a month after Surratt was indicted. 14 Stat. 471 § 30 (1867).

No one at the time the Lincoln’s assassins were charged, either before the

military commission or by the grand jury, would have understood the general

allegation that they “conspired” to allege the stand-alone misdemeanor of

conspiracy. If nothing else, it would have seemed absurdly lenient. Viewing the

allegations in these cases as alleging a stand-alone charge of conspiracy, as we

know it today, is simply a misreading of Nineteenth Century law.

Grenfel. The government’s last resort is the Grenfel trial, which is the only

example it cites of an ostensibly inchoate conspiracy being tried before a military

commission. Resp. 37. The problem with Grenfel is that it is precisely the kind of

“field order” that this Court rejected as too obscure and too unreliable to have any

relevance today. Bahlul, at *18. And, if one looks closely, the Grenfel case

illustrates this Court’s concerns perfectly.


18

Like the Lincoln Assassins, this is another case that Winthrop describes as a

“hybrid” military commission. Winthrop, at 839, n.5; see also Hamdan, 548 U.S.

at 609 n.37 (plurality op.) (describing the charges as “hybrid crimes”). What is

more, the prosecution defended the commission’s jurisdiction over Grenfel and his

co-defendants by insisting that martial law applied in Chicago. H.Exec.Doc #50,

Supp.App. 66-74. The prosecution’s primary legal authority for this argument was

the “military commission which sat at Indianapolis” id. at 580, Supp.App. 74,

which was invalidated the following year in Ex parte Milligan.

E. The Government’s Alternative Reliance on the Necessary & Proper Clause is also Contrary to Settled Law.

Finally, the government suggests that the Necessary & Proper Clause can be

used as something of a “fudge-factor,” authorizing Congress to criminalize

offenses that are not, in fact, recognized under international law pursuant to its

power to “define and punish … Offenses against the Law of Nations.” The

Necessary & Proper Clause, however, does not grant Congress the power to reach

beyond the limits of its enumerated powers when legislating the jurisdiction of

military tribunals. The government made the identical argument in Toth v. Quarles,

305 U.S. 11 (1955), and the Supreme Court held that even its broad authority to

regulate the Armed Forces “does not empower Congress to deprive people of trials

under Bill of Rights safeguards, and we are not willing to hold that power to


19

circumvent those safeguards should be inferred through the Necessary and Proper

Clause.” Id. at 22. The government makes no attempt to distinguish this clearly

binding precedent. This Court should therefore disregard its furtive attempt to

revive this argument here.

III. CONSPIRACY IS A DOMESTIC-LAW CRIME TRIABLE ONLY IN THE COURTS OF LAW.

A. Compliance with the Jurisdictional Limits Imposed by Article III is Reviewed De Novo.

As noted above, the government waived any reliance on procedural defaults

to evade de novo review of the Article III issue in this case. But even if it had not,

the core requirements of Article III cannot be forfeited in a criminal case.

One reason is that Article III’s jury trial requirement is one of the few, but

well-established, rights that cannot be deemed waived in a criminal proceeding

without the “express and intelligent consent of the defendant.” Patton v. United

States, 281 U.S. 276, 312 (1930). The government does not – and has never –

contended that Bahlul knowingly and voluntarily waived a jury trial.

The overriding reason, as the government apparently acknowledges, is that

the Department of Defense’s assumption of the judicial power to try purely

domestic-law crimes poses a structural threat to the separation-of-powers that

requires careful judicial scrutiny regardless of the parties’ arguments at trial. Resp.

at 50 (citing CFTC v. Schor, 478 U.S. 833 (1986) and Kuretski v. C.I.R., 755 F.3d


20

929 (D.C. Cir. 2014)). These “structural constitutional objections” cannot be

forfeited because they invoke “the strong interest of the federal judiciary in

maintaining the constitutional plan of separation-of-powers.” Freytag v. C.I.R., 501

U.S. 868, 878-80 (1991); Glidden Co. v. Zdanok, 370 U.S. 530 (1962) (forfeiture

“is plainly insufficient to overcome the strong interest of the federal judiciary in

maintaining the constitutional plan of separation-of-powers.”); Waldman v. Stone,

698 F.3d 910, 918 (6th Cir. 2012) (“the structural principle advanced by Article III

… is not Waldman’s to waive.”).

These structural interests require especially close scrutiny in the context of

military tribunals, where the federal courts have a special duty to guard against the

military’s encroachment into the judicial power. Hamdan, 548 U.S. at 588

(recognizing the “duty which rests on the courts, in time of war as well as in time

of peace, to preserve unimpaired the constitutional safeguards of civil liberty[.]”);

Reid v. Covert, 354 U.S. 1, 21 (1957) (“every extension of military jurisdiction is

an encroachment on the jurisdiction of civil courts, and, more important, acts as a

deprivation of the right to jury trial and of other treasured constitutional

protections.”); Toth, 350 U.S. at 15 (same).

Finally, like the scope of Congress’ power under the Define & Punish

Clause, the Article III issue in this case squarely challenges the military

commission’s “constitutional power to adjudicate” a domestic-law crime that by


21

long tradition and practice is within the exclusive jurisdiction of the courts of law.

Cotton, 535 U.S. at 630 (original emphasis). This objection to the particular

offenses charged is one of the handful of challenges to “jurisdiction,” Quirin, 317

U.S. at 46, that could be heard via habeas even before the scope of the writ

expanded after Peyton v. Rowe, 391 U.S. 54 (1968). Indeed, it is difficult to

imagine what else “jurisdiction” could mean in this context.

B. Conspiracy is Triable Only by the Courts of Law.

The parties agree that the Article III question in this case is decided by

Quirin. Resp. 52-54. The only dispute is over what Quirin held.

The most straightforward reading of Quirin is that law-of-war military

commissions are a narrow exception to the judicial trial requirements of Article III

that is rooted in the fact that “offenses against the law of nations” are ordinarily not

among the “class of offenses constitutionally triable only by a jury.” Quirin, 317

U.S. at 28-29. As Quirin explains, most offenses arising under that “branch of

international law” fall into a special class that did not entail a jury trial right at

common law and, as a result, need not entail one today. Id. at 29, 39-40.

The Court in Quirin was explicit about this, particularly for the historic

practice of trying “spies according to the law and usage of nations.” Quirin, 317

U.S. at 41 (quotations omitted). Whatever international law currency the ancient

offenses of spying and aiding the enemy have lost in contemporary scholarship,


22

they stand apart for Article III purposes as the only offenses for which non-service

members could be tried by the military “since the founding of our Government.” Id.

The government attempts to bend Quirin to its purposes in two ways. Both

require this Court to repudiate, or at least ignore, the plain text of the Supreme

Court’s relevant decisions.

Its first argument is that law-of-war military commissions’ only

jurisdictional limit should be the “enemy combatant” status of the accused. Resp.

56-57. It claims that this is what distinguished Quirin from Milligan. Id. 57 n.10.

This argument, however, is irreconcilable with history and the Quirin opinion.

History reflects scores, if not hundreds, of civilians tried by law-of-war military

commissions for war crimes both before and after Quirin was decided. For

example, none of the Lincoln Assassins were combatants and the gunman was a

stage-actor. Quirin, for its part, was explicit that its only inquiry was whether one

of the offenses charged was an “offense[] against the law of war not triable by jury

at common law[.]” Quirin, 317 U.S. at 40. Indeed, the Court expressly

distinguished Milligan because the offenses charged in that case were “of that class

of offenses constitutionally triable only by a jury.” Id. at 29.

The government’s second argument is that the saboteurs in Quirin were

charged with a conspiracy offense without the Supreme Court’s express

disapproval. Resp. 35. While it is true that Quirin never explicitly held that stand-


23

alone conspiracy charges were “of that class of offenses constitutionally triable

only by jury,” it had no need to do so. Not only was it unnecessary to the outcome

of the case, the point is made self-evident by the two authorities the Court used to

illustrate the constitutional limits on the subject-matter jurisdiction that can be

given to summary trial chambers.

The first was Milligan, which as noted above, was distinguishable because

the offenses in that case were “triable only by jury.” The primary charge in

Milligan was “conspir[acy] against the government.” Milligan, 4 Wall. at 122. And

Milligan’s clear holding, which Quirin reaffirmed, was that the government was

obliged to try this crime “according to the course of the common law.” Id.

The second was the Court’s reliance on Callan v. Wilson, 127 U.S. 540

(1888), as its primary authority for the scope of Article III’s jury trial right. Quirin,

317 U.S. at 39. Callan asked whether the District of Columbia’s Police Court

could summarily try conspiracies to commit offenses that might otherwise fall

within its jurisdiction. The very first sentence of the page Quirin cites from Callan

holds that the non-judicial trial of stand-alone conspiracy charges “cannot be

sustained without violence to the letter and spirit of the constitution.” Callan, 127

U.S. at 549; id. at 556 (“the nature of the crime of conspiracy at common law”

establishes that an accused is “entitled to a jury, when put upon his trial.”).

If there were any lingering doubts about the Court’s view of conspiracy, it


24

was dispelled in the opinion’s concluding paragraphs. After holding that Charge I

(sabotage) was triable in a military tribunal, the Court expressly reserved judgment

on “whether the specifications under Charges II and III … are constitutional.”

Quirin, 317 U.S. at 46. Deliberately excluded from this list was Charge IV

(conspiracy), which the Court’s reasoning and authority all recognized was of a

“class or grade triable at common law by a jury.” Callan, 127 U.S. at 555.

As Bahlul’s trial demonstrated, a conspiracy prosecution is a quintessentially

judicial inquiry that depends upon using law enforcement methods to prove subtle

questions of specific intent through circumstantial evidence. And because the

essence of what must be proven is a mere agreement, no military necessity justifies

dispensing with an independent judge and jury to deal with “enemies who had

done little more than agree to violate the laws of war.” Hamdan, 548 U.S. at 607

(plurality op.). Due deliberation on an accused’s guilt for the perpetration of an

infamous crime not only ensures that any conviction is reliable and perceived as

legitimate, it is the core competence of the Judicial Branch and, under the

Constitution, its sole responsibility. Toth, 350 U.S. at 15.

In the face of this, the government falls back on out-of-context quotations

from Palmore v. United States, 411 U.S. 389, 401 (1973), which are presented to

suggest that Congress may dispense with Article III courts for the trial of any

federal crime. The Supreme Court squarely rejected this argument, which relied


25

upon the same mis-citation to Palmore, when it held that “where Article III does

apply, all of the legislative powers specified in Article I and elsewhere are subject

to it.” Northern Pipeline v. Marathon Pipeline, 458 U.S. 50, 73 (1982). The

alternative, the Court opined, “provides no limiting principle” and invites Congress

to “effectively eviscerate the constitutional guarantee of an independent Judicial

Branch of the Federal Government.” Id. at 74.

IV. THE GOVERNMENT CANNOT PUT THOUGHTS, BELIEFS, AND IDEALS ON TRIAL.

A. Abridgments of the First Amendment are Reviewed De Novo.

In asking for plain error review of the First Amendment issues in this case,

the government asks this Court to ignore both the Supreme Court and the record of

trial. It is well established that First Amendment issues present a special case on

appellate review. Harry Edwards & Linda Elliot, Federal Courts – Standards of

Review 3-4 (West 2007), App. 28-31. As “the only effectual guardian of every

other right” in a free society, James Madison, The Resolution of Virginia in

Opposition to the Alien and Sedition Laws (1798) , the courts have a sui sponte

obligation to protect the freedom of speech when the conduct of a trial threatens to

do the work of the censor. Bose Corp. v. Consumers Union, 466 U.S. 485, 499

(1984); see also Curtis Pub. v. Butts, 388 U.S. 130, 145 (1967) .

Moreover, Bahlul repeatedly asserted his status as a “media man” and

invoked the “freedom of the press.” App. 160. The government built its case


26

around Bahlul’s status as a “propagandist” and, most damningly, implored the

military commission to punish him with life imprisonment for making a “political

argument.” App. 198. If there were ever a case that cried out for sui sponte

intervention from a presiding judge, it was this case, where the government put a

film on trial because it “contain[ed] the thoughts, the beliefs, the ideals of the

accused.” App. 209.

B. The Government Cannot Disregard the First Amendment when it Prosecutes the Production of a Film.

The government’s primary claim is that it was under no obligation to respect

the freedom of speech in the course of this prosecution because Bahlul had no First

Amendment rights in Afghanistan. This cramped view of freedom of speech is

anathema to the interests the First Amendment aims to protect, which “go[] beyond

protection of the press and the self-expression of individuals to prohibit

government from limiting the stock of information from which members of the

public may draw.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978).

When the government uses the criminal law to punish an individual for the ideas

he expresses, it uses the courts “to command where [another] person may get his or

her information or what distrusted source he or she may not hear, it uses censorship

to control thought. This is unlawful. The First Amendment confirms the freedom to

think for ourselves.” Citizens United v. FEC, 558 U.S. 310, 356 (2010).


27

Regardless, therefore, of any personal right Bahlul could theoretically assert

as a civil plaintiff, he can assert the freedoms of speech and press are violated in

the course of his criminal prosecution. “[T]his is so even where the constitutional

provision that would render the conviction void is directed at protecting a party not

before the Court.” Bond v. United States, 131 S.Ct. 2355, 2367 (2011); see also

Eisenstadt v. Baird, 405 U.S. 438, 445 n.5 (1972); cf. DKT Mem’l Fund v.

U.S.A.I.D., 887 F.2d 275, 285 (D.C. Cir.1989) (distinguishing a non-citizen’s

standing to sue under the First Amendment with a non-citizen’s right to assert

defenses at trial).

Alternatively, the government asks this Court to ignore the conduct of its

prosecution and instead focus on the handful of overt acts alleged, which would be

punishable irrespective of the First Amendment. It cites, in support, cases such as

United States v. Rahman, 189 F.3d 88 (2d Cir. 1998), where defendants were

convicted for terrorism-related offenses despite their political motives. But what

the government fails to disclose is that in all of those cases, the trial judge did what

the military judge failed to do here: instruct the members that the accused’s

political beliefs were not on trial. Id. at 118 (“Judge Mukasey properly …

instructed that a defendant could not be convicted on the basis of his beliefs or the

expression of them – even if those beliefs favored violence.”).


28

The prosecution set out “to impose liability on the basis of the jurors’ tastes

or views, or perhaps on the basis of their dislike of a particular expression.” Snyder

v. Phelps, 131 S.Ct. 1207, 1291 (2011). The military judge, under longstanding

military law, had an independent obligation to control the conduct of trial and

instruct on any issue raised by the evidence. Even in a federal trial, where issues of

rank and organizational loyalty are absent, “the judge is not a mere moderator, but

is the governor of the trial for the purpose of assuring its proper conduct and of

determining questions of law.” Quercia v. United States, 289 U.S. 466, 469 (1933).

That was not done. The judgment below should therefore be reversed.

V. SEGREGATING THE CRIMINAL JUSTICE SYSTEM IS UNCONSTITUTIONAL.

A. Discrimination Based on Nationality is Reviewed De Novo.

As a threshold matter, forfeiture and plain error are inapplicable to a military

tribunal’s personal jurisdiction. Under longstanding military law, constitutional or

statutory defects in a military tribunal’s “jurisdiction over the person, as well as

jurisdiction over the subject matter, may not be the subject of waiver.” United

States v. Garcia, 5 C.M.A. 88, 94 (C.M.A. 1954); see also United States v.

Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000) (“When an accused contests personal

jurisdiction on appeal, we review that question of law de novo[.]”).

Even assuming personal jurisdiction can be forfeited, Bahlul raised the

precise objection below that he now raises to the military commissions’


29

discrimination on the basis of nationality. As noted in our opening brief, Bahlul’s

justified his so-called “boycott” with nine written objections, what he referred to as

his “nine political and legal reasons.” App. 152; Pet.Br. 2-3. Objection #7 contests

the military commissions’ “racial discrimination based on nationality.” App. 114.

While Bahlul’s pro se arguments may be “less detailed” than those this Court

might expect from a lawyer, his written objection to the military commission’s

discrimination based on nationality unambiguously asserted “the arguments

advanced on appeal.” United States v. Sheehan, 512 F.3d 621, 627 (D.C. Cir. 2008).

Furthermore, any doubts about the adequacy Bahlul’s written objections

must be resolved against the government. It alone was the custodian of his legal

papers and, as it stipulated at trial, it lost the only copy of his written objections.

App. 150. In their place, a portion of the transcript from Bahlul’s 2006 trial was

entered into the record, in which he discusses these objections with the military

judge. The quality of translation is extremely poor and, inexplicably, the transcript

omits any reference to his fourth objection. App. 112-13. This incomplete and

corrupted fragment of transcript has rendered any effort to ascertain the precision

of his objections “an exercise in creative imagination.” United States v. Workcuff,

422 F.2d 700, 702 (D.C. Cir. 1970). This Court therefore reviews the

commission’s discrimination based on nationality de novo.


30

B. De Jure Segregation is Subject to Strict-Scrutiny.

The government offers no good legal authority or reason for why strict-

scrutiny should not apply in this case. Even “aliens whose presence in this country

is unlawful” are protected “from invidious discrimination by the Federal

Government.” Plyler v. Doe, 457 U.S. 202, 210 (1982). “Discrimination by a state

or the federal government against a minority, when based on an immutable

characteristic of the members of that minority … makes the discriminatory law or

policy constitutionally suspect.” Baskin v. Bogan, 2014 WL 4359059 at *1 (7th

Cir. 2014) (Posner, J.) (“Baskin”).

Undoubtedly, Congress enjoys wide latitude when legislating in areas of

immigration or political privileges. An individual’s citizenship in such situations is

not only relevant, but often the very subject of regulation. Equal justice under law,

however, is not a political privilege and its discriminatory denial is subject to the

strictest judicial scrutiny. See Chan Gun v. United States, 9 App.D.C. 290, 298

(D.C. Cir. 1896) (“[When] the enactment goes beyond arrest and necessary

detention … the judicial power will intervene … [to ensure] a regular judicial trial

as in all cases of crime”).

In every prior conflict in which the United States employed military

commissions, accused war criminals were held equally accountable in the same

tribunals, under the same rules, for the same offenses, regardless of citizenship.


31

Pet.Br. 48-50. The government attempts to distract from this tradition by recasting

the 1806 spying statute, which applied to “persons not citizens of, or owing

allegiance to the United States of America,” as demonstrating an alternative history

of invidious discrimination. Resp. 65. This is pure anachronism. Spying,

historically understood, necessarily required the spy to be an enemy agent.

Winthrop, at 766-67, Supp.App. 85-86. Citizens who engaged in similar conduct

were not spies, but war traitors and liable to prosecution, as such, under the 1806

law. 2 Stat. 359, arts. 57-58 (1806). In the Civil War, when national allegiance no

longer defined the enemy, this aspect of the spying statute was promptly replaced

with an individual’s nexus to “a state of insurrection.” 12 Stat. 340 (1862).

The only example of a similarly discriminatory law in U.S. history was the

Chinese Exclusion Act, 27 Stat. 25 (1892). It created a special administrative trial

process to prosecute violations of the immigration laws. More than century ago

(the very same year in which “separate but equal” was upheld, Plessy v. Ferguson,

163 U.S. 537 (1896)), the Supreme Court unanimously struck down this law

because it imposed criminal penalties on “persons,” in the language of the Fifth

Amendment, in a discriminatory manner and without the benefit of judicial trial.

Wong Wing v. United States, 163 U.S. 228 (1896).


32

C. Under Any Standard, the De Jure Segregation Here was Invidious, Irrational, and Unconstitutional.

Regardless of whether strict-scrutiny applies, discrimination must bear some

rational relationship to achieving a legitimate government interest. Yet, as

evidenced by the extensive legislative record, the only apparent motivations for the

segregation of terrorism trials was lawmakers’ animus toward non-citizens and the

avoidance of the political accountability that might result if citizens were equally

triable. Pet.Br. 51-52.

The government does not really dispute this. Instead, it insists that rational

basis scrutiny is satisfied so long as this Court can divine a legitimate purpose that

discrimination “could” hypothetically have served. Resp. 67 (original emphasis).

This assertion, however, leads to an obvious question: What legitimate purpose

could Congress possibly have pursued by passing a law that legislators openly

acknowledged would segregate terrorism suspects for trial based on nothing but

citizenship, even when they were arrested at the same time for the same crime?

Pet.Br. 52. The government’s only response is the bare assertion of its “national

security interest in establishing a military forum in which to bring to justice alien

unlawful belligerents.” Resp. 67. But this just begs the question. It asserts nothing

but the decision to discriminate as a self-satisfying reason to discriminate.

The issue here is not whether the government has a legitimate national

security interest in establishing a “military forum” to try war criminals. It is what


33

objective Congress could have rationally believed it could achieve by legislating

apartheid into the American criminal justice system. The law’s under-inclusiveness,

its exclusion of the equal, if not greater, threat to national security posed by

citizens, leaves no conclusion other than legislative “arbitrariness.” Baskin, at *3. It

is a law that self-consciously “lays an unequal hand on those who have committed

intrinsically the same quality of offense,” which is no less “invidious a

discrimination as if it had selected a particular race or nationality for oppressive

treatment.” McLaughlin v. Florida, 379 U.S. 184, 194 (1964).

If, as the government suggests, Congress segregated the judicial system

because it wanted to make convictions as easy as possible to procure and believed

this Court would be less troubled if this was first attempted on non-citizens, Resp.

68, then this Court has been given the best possible reason to invalidate this

unmasked denial of equal justice under law. “Providing equal justice” has always

been a “central aim of our entire judicial system[.]” Griffin v. Illinois, 351 U.S. 12,

16-17 (1956). Invidiously segregated criminal trials are unconstitutional and the

judgment below should vacated.


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CONCLUSION

For the foregoing reasons, this Court should apply settled law and vacate the

judgment below.

Respectfully submitted, /s/ Michel Paradis Michel Paradis Mary R. McCormick 1620 Defense Pentagon Washington, DC 20301-1620 [email protected] TEL: 1.703.696.9490 x115 FAX: 1.703.696.9575 MAJ Todd E. Pierce, JA, U.S. Army (Ret.) Senior Fellow Univ. of Minnesota Human Rights Center Mondale Hall, N-120 229-19th Avenue South Minneapolis, MN 55455 Counsel for Petitioner


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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitations imposed by Fed. R.

App. P. 32(a)(7)(B) as augmented by this Court’s order because:

X this brief contains 7,969 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

X this brief uses a monospaced typeface and contains ____ lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

X this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 point font size and Times New Roman type style; or

X this brief has been prepared in a monospaced typeface using _______ with __________________.

Dated: October 6, 2014

Respectfully submitted,

/s/ Michel Paradis Counsel for Petitioner


36

CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2014 a copy of the foregoing was filed

electronically with the Court. Notice of this filing will be sent to all parties by

operation of this Court’s electronic filing system. Parties may access this filing

through the Court’s system.

Dated: October 6, 2014

Respectfully submitted,

/s/ Michel Paradis Counsel for Petitioner


Documents

FOR THE DISTRICT OF COLUMBIA CIRCUIT Docket … [Oral argument schedule d for October 22, 2014] FOR THE DISTRICT OF COLUMBIA CIRCUIT Docket No. 11-1324 ALI HAMZA SULIMAN AHMAD AL BAHLUL,