USCA Case # Document # Filed: 10/06/2014 Page 1 of [Oral argument scheduled for October 22, 2014]

Transcription

1 USCA Case # Document # Filed: 10/06/2014 Page 1 of [Oral argument scheduled for October 22, 2014] FOR THE DISTRICT OF COLUMBIA CIRCUIT Docket No ALI HAMZA SULIMAN AHMAD AL BAHLUL, v. UNITED STATES, Petitioner, Respondent. APPEAL FROM COURT OF MILITARY COMMISSION REVIEW (CMCR ) 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 Human Rights Center michel.paradis@osd.mil Mondale Hall, N-120 TEL: x th Avenue South FAX: Minneapolis, MN Counsel for Petitioner

2 USCA Case # Document # Filed: 10/06/2014 Page 2 of 44 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 ofthe 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) i

3 USCA Case # Document # Filed: 10/06/2014 Page 3 of 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 (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 ii

4 USCA Case # Document # Filed: 10/06/2014 Page 4 of 44 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 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 B. Congress Power to Codify War Crimes Derives Exclusively from the Define & Punish Clause C. Spying and Aiding the Enemy Support the Traditional Scope of Congress Power Under the Define & Punish Clause D. Conspiracy is Unprecedented as a Stand-Alone War Crime E. The Government s Alternative Reliance on the Necessary & Proper Clause is also Contrary to Settled Law 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 B. Conspiracy is Triable Only by the Courts of Law IV. The Government Cannot Put Thoughts, Beliefs, and Ideals on Trial A. Abridgments of the First Amendment are Reviewed De Novo B. The Government Cannot Disregard the First Amendment when it Prosecutes the Production of a Film V. Segregating the Criminal Justice System is Unconstitutional A. Discrimination Based on Nationality is Reviewed De Novo B. De Jure Segregation is Subject to Strict-Scrutiny C. Under Any Standard, the De Jure Segregation Here was Invidious, Irrational, and Unconstitutional Conclusion Certificate of Service iii

5 USCA Case # Document # Filed: 10/06/2014 Page 5 of 44 TABLE OF AUTHORITIES Petitioner places primary reliance on authorities marked with an * Cases Baskin v. Bogan, 2014 WL (7th Cir. 2014)... 30, 33 Bond v. United States, 131 S.Ct (2011) Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) *Callan v. Wilson, 127 U.S. 540 (1888)... 23, 24 CFTC v. Schor, 478 U.S. 833 (1986) Chan Gun v. United States, 9 App. D.C. 290 (D.C. Cir. 1896) Citizens United v. FEC, 558 U.S. 310 (2010) Colepaugh v. Looney, 235 F.2d 429 (10th Cir.1956) Comm. v. Kingsbury, 5 Mass. 106 (Mass. 1809) Curtis Pub. v. Butts, 388 U.S. 130 (1967) DKT Mem l Fund v. U.S.A.I.D., 887 F.2d 275 (D.C. Cir.1989) Eisenstadt v. Baird, 405 U.S. 438 (1972) 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) Freytag v. C.I.R., 501 U.S. 868 (1991) Glidden Co. v. Zdanok, 370 U.S. 530 (1962) Griffin v. Illinois, 351 U.S. 12 (1956) *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) Iannelli v. United States, 420 U.S. 770 (1975) 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) iv

6 USCA Case # Document # Filed: 10/06/2014 Page 6 of 44 McLaughlin v. Florida, 379 U.S. 184 (1964) Northern Pipeline v. Marathon Pipeline, 458 U.S. 50 (1982) O Callahan v. Parker, 395 U.S. 258 (1969)... 6 Palmore v. United States, 411 U.S. 389 (1973) Patton v. United States, 281 U.S. 276 (1930) Peyton v. Rowe, 391 U.S. 54 (1968) Plessy v. Ferguson, 163 U.S. 537 (1896) Plyler v. Doe, 457 U.S. 202 (1982) Quercia v. United States, 289 U.S. 466 (1933) Reid v. Covert, 354 U.S. 1 (1957) Snyder v. Phelps, 131 S.Ct (2011) 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 (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) United States v. Melanson, 53 M.J. 1 (C.A.A.F. 2000) 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) 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) United States v. Workcuff, 422 F.2d 700 (D.C. Cir. 1970) Waldman v. Stone, 698 F.3d 910 (6th Cir. 2012) *Wong Wing v. United States, 163 U.S. 228 (1896) v

7 USCA Case # Document # Filed: 10/06/2014 Page 7 of 44 Statutes 12 Stat. 340 (1862) Stat. 471 (1867) Stat. 359 (1806) Stat. 25 (1892) Journals of the Continental Congress, (GPO 1904)... 9, 11 Executive Branch Materials DoD Directive E (Aug. 19, 2014)... 8 Ex parte Quirin, Case Nos. 1-7, Brief for Respondents (Jul. 29, 1942) 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) Digest of the Opinions of the Judge Advocates General (1912) George Davis, Outlines of International Law (1887) Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat Harry Edwards & Linda Elliot, Federal Courts Standards of Review (West 2007) Henry Halleck, International Law (1908) James Madison, The Resolution of Virginia in Opposition to the Alien and Sedition Laws (1798) 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) United States v. Surratt, Case No (D.C.Sup.Ct., Feb. 4, 1867) William Winthrop, Military Law & Precedents (1920)... 7, 11, 15, 18, 31 vi

8 USCA Case # Document # Filed: 10/06/2014 Page 8 of 44 GLOSSARY OF TERMS 2006 Act... Military Commissions Act of 2006, 120 Stat (2006) App.... Petitioner s Appendix, dated Aug. 13, 2014 Bahlul... United States v. Bahlul, 2014 WL (D.C. Cir. 2014) (en banc) Baskin... Baskin v. Bogan, 2014 WL (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) vii

9 USCA Case # Document # Filed: 10/06/2014 Page 9 of 44 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 1

10 USCA Case # Document # Filed: 10/06/2014 Page 10 of 44 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. 2

11 USCA Case # Document # Filed: 10/06/2014 Page 11 of 44 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 As this Court has held, waiver and forfeiture are not the same[.] United States v. Bahlul, 2014 WL 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). 3

12 USCA Case # Document # Filed: 10/06/2014 Page 12 of 44 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 The government stipulated that this challenge to the charges alleges a ground for relief that has not been waived. Supp.App 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). 4

13 USCA Case # Document # Filed: 10/06/2014 Page 13 of 44 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, (1905) (challenges to Congress power to enact crimes are jurisdictional); Ex parte Siebold, 100 U.S. 371, (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 5

14 USCA Case # Document # Filed: 10/06/2014 Page 14 of 44 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 (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 courtmartial 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. 6

15 USCA Case # Document # Filed: 10/06/2014 Page 15 of 44 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 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 7

16 USCA Case # Document # Filed: 10/06/2014 Page 16 of 44 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 , Judge Rogers separate en banc opinion, Bahlul, at *27, as well as the panel decision in Hamdan v. United States, 696 F.3d 1238, & 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 E (Aug. 19, 2014), Supp.App 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. 8

17 USCA Case # Document # Filed: 10/06/2014 Page 17 of 44 Id. at 14, Supp.App 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 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-ofwar 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 Journals of the Continental Congress, , 1:111-23, 1:450 (GPO 1904) (enacting the first statutes on aiding the enemy 9

18 USCA Case # Document # Filed: 10/06/2014 Page 18 of 44 and spying respectively); Supp.App 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 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 10

19 USCA Case # Document # Filed: 10/06/2014 Page 19 of 44 World War, Quirin had a wealth of precedent and international legal authority behind it in 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: (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 ; 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 ; 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 (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 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 11

20 USCA Case # Document # Filed: 10/06/2014 Page 20 of 44 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 nonintercourse, 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 subjectmatter jurisdiction is limited to offenses accepted as valid by authorities on 12

21 USCA Case # Document # Filed: 10/06/2014 Page 21 of 44 international law as a rule or principle of the law of war. Quirin, 317 U.S. at 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. 13

22 USCA Case # Document # Filed: 10/06/2014 Page 22 of 44 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 (Jul. 29, 1942); Supp.App 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 The first citation is to the Digest of the Opinions of the Judge Advocates General 1071 (1912); Supp.App 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, (2014). The only view of the Executive Branch it reflects, therefore, is a prosecutor s litigation position. 14

23 USCA Case # Document # Filed: 10/06/2014 Page 23 of 44 (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 ; 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 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 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 15

24 USCA Case # Document # Filed: 10/06/2014 Page 24 of 44 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 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). 16

25 USCA Case # Document # Filed: 10/06/2014 Page 25 of 44 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 United States v. Surratt, Case No (D.C.Sup.Ct., Feb. 4, 1867); Supp.App Indeed, it could not have been. The federal conspiracy statute was enacted a month after Surratt was indicted. 14 Stat (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. 17

26 USCA Case # Document # Filed: 10/06/2014 Page 26 of 44 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 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 18

27 USCA Case # Document # Filed: 10/06/2014 Page 27 of 44 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 19

28 USCA Case # Document # Filed: 10/06/2014 Page 28 of (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, (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 20

29 USCA Case # Document # Filed: 10/06/2014 Page 29 of 44 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 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 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, 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, 21

30 USCA Case # Document # Filed: 10/06/2014 Page 30 of 44 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 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- 22

31 USCA Case # Document # Filed: 10/06/2014 Page 31 of 44 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 23

32 USCA Case # Document # Filed: 10/06/2014 Page 32 of 44 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 24

33 USCA Case # Document # Filed: 10/06/2014 Page 33 of 44 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 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 The government built its case 25

34 USCA Case # Document # Filed: 10/06/2014 Page 34 of 44 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 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 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). 26