USCA Case # Document # Filed: 08/08/2013 Page 1 of 50

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1 USCA Case # Document # Filed: 08/08/2013 Page 1 of 50

2 USCA Case # Document # Filed: 08/08/2013 Page 2 of 50 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES I. PARTIES AND AMICI APPEARING BELOW The parties and amici who appeared before the United States 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) B. Parties 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) 6. Amicus Curiae First Amendment Historians, Jeffrey Renz (on brief) i

3 USCA Case # Document # Filed: 08/08/2013 Page 3 of 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, and Scholars, Peter Marguiles (on brief) 11. Amicus Curiae Washington Legal Foundation, Richard Samp (on brief) II. 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). III. 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. The issues briefed herein relate to this Court s decision in Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012). Dated: August 8, 2013 By: /s/ Michel Paradis Counsel for Petitioner ii

4 USCA Case # Document # Filed: 08/08/2013 Page 4 of 50 TABLE OF CONTENTS Table of Contents... iii Table of Authorities... iv Summary of Argument... 1 Argument... 4 I. Criminal cases are decided under the law as it was, not under Congress beliefs about what it was II. This military commission lacked jurisdiction because none of the offenses would have been triable under Article A. In the absence of Article 21, military commissions convened under the 2006 Act would have no jurisdiction over pre-enactment conduct B. The law of war is and always has been a branch of international law C. Article 21 s common law jurisdiction extends only to war crimes recognized under international law III. The government s flexible approach to the Ex Post Facto Clause is a standardless exercise in crime by analogy IV. The commission s jurisdiction is properly before this Court Conclusion Statutory Addendum Certificate of Compliance with Rule 32(a) Certificate of Service iii

5 USCA Case # Document # Filed: 08/08/2013 Page 5 of 50 TABLE OF AUTHORITIES Cases Al Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) Blackledge v. Perry, 417 U.S. 21 (1974) Bouie v. Columbia, 378 U.S. 347 (1964) Calder v. Bull, 3 Dall. 386 (1798) Carmell v. Texas, 529 U.S. 513 (2000) Chiarella v. United States, 445 U.S. 222 (1980) Cole v. Arkansas, 333 U.S. 196 (1948) Crawford v. Washington, 541 U.S. 36 (2004) Donnelley v. United States, 276 U.S. 505 (1928)... 9 Dunn v. United States, 442 U.S. 100 (1979) Ex parte Milligan, 4 Wall. 2 (1866) * Ex parte Quirin, 317 U.S. 1 (1942)... 3, 9, 10, 11, 16, 18, 19, 20 Ex parte Siebold, 100 U.S. 371 (1880) * Hamdan v. Rumsfeld, 548 U.S. 557 (2006)... 13, 18 Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012)... 4, 7, 10, 16, 17, 26 In re Murphy, 17 F.Cas (C.C.D.Mo. 1867)... 15, 29 In re Neagle, 135 U.S. 1 (1890)... 9 * In re Yamashita, 327 U.S. 1 (1946)... 3, 10, 16, 18, 20 Koshkonong v. Burton, 104 U.S. 668 (1881)... 6 Marbury v. Madison, 1 Cranch 137 (1804)... 6 McCormick v. United States, 500 U.S. 257 (1991) Menna v. New York, 423 U.S. 61 (1975) Milhouse v. Levi, 548 F.2d 357 (D.C. Cir. 1976) Papachristou v. Jacksonville, 405 U.S. 156 (1972) * Authorities on which we chiefly rely are marked with an *. iv

6 USCA Case # Document # Filed: 08/08/2013 Page 6 of 50 Peugh v. United States, 133 S.Ct (2013) Postmaster-General v. Early, 12 Wheat. 136 (1827)... 6 Prosecutor v. Stakic, Judgment, IT A, 2006 WL (I.C.T.Y. App. Ch., Mar. 22, 2006) Rivers v. Roadway Exp., 511 U.S. 298 (1994)... 5 Sikora v. American Can, 622 F.2d 1116 (3d Cir.1980)... 5 The Antelope, 10 Wheat. 66 (1825) The Justice Trial, 6 L. Rep. T. War Crim. 1 (1946) United States v. Ali, 718 F.3d 929 (D.C. Cir. 2013) United States v. Bahlul, 820 F.Supp.2d 1141 (U.S.C.M.C.R. 2011) United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2013) United States v. Chavis, 486 F.2d 1290 (D.C. Cir. 1973) United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) United States v. Hilton, 27 M.J. 323 (C.M.A. 1989) United States v. Hudson & Goodwin, 7 Cranch 32 (1812)... 9 United States v. Jones, 132 S.Ct. 945 (2012) United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) United States v. Palmer, 3 Wheat. 610 (1818) United States v. Peter, 310 F.3d 709 (11th Cir. 2002) United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) United States v. Stafoff, 260 U.S. 477 (1923)... 6 United States v. Yousef, 327 F.3d 56 (2d. Cir. 2003) * Weaver v. Graham, 450 U.S. 24 (1981)... 5 Wheaton v. Peters, 8 Pet. 591 (1834)... 9 Wilson v. Wall, 6 Wall. 83 (1867)... 6 Constitutional Provisions U.S. Const., art. I 8, cl , 17, 19, 20 U.S. Const., art. I 9, cl U.S. Const., art. III v

7 USCA Case # Document # Filed: 08/08/2013 Page 7 of 50 U.S. Code 10 U.S.C U.S.C , 7, U.S.C U.S.C. 881 (2006) U.S.C. 948b (2006) U.S.C. 948d (2006) U.S.C. 948q (2006) U.S.C. 950f (2009) U.S.C. 950p (2006) U.S.C. 950t (2009) U.S.C (2006) Congressional Materials H.R. Rep. No (1996) H.R. Rep. No (2006) Hearings on H.R (1949) Journals of the Continental Congress, (GPO 1904) Military Commissions Act of 2006, Pub. L. No (2006)... 1, 8, 28 S. Rep. No (1949) Executive Materials BG Mark Martins, Memorandum for the Convening Authority (Jan. 6, 2013) Eric Holder, Address to Northwestern University Law School (Mar. 5, 2012) Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (Apr. 24, 1863)... 10, 29 Military Aid to the Civil Power (1925) Military Commissions, 11 U.S. Op. Atty. Gen. 297 (1865)... 10, 19 Uniform Code of Military Justice: Text, References and Commentary based on the Report of the Committee on a vi

8 USCA Case # Document # Filed: 08/08/2013 Page 8 of 50 Uniform Code of Military Justice to The Secretary of Defense, Feb. 9, United States v. Bahlul, Case No , Brief of the United States (U.S.C.M.C.R., Oct. 21, 2009) United States v. Dire, Case No , Brief of the United States, 2011 WL (4th Cir., Jul. 22, 2011) Miscellaneous David Glazier, The Misuse of History, Loyola-LA Legal Studies Paper No (2013) Haridimos Thravalos, History, Hamdan, and Happenstance, 3 Harv. Nat l Sec. J. 223 (2012) Kent s Comm. on Am. L. (10th ed. 1860)... 6 Lewis Carroll, Alice s Adventures in Wonderland (1865) LTC Jeffrey Woods, Evolution of the M855A1 Enhanced Performance Round, AL&T Magazine (Nov. 26, 2010) MG George B. Davis, A Treatise on the Military Law of the United States (3d ed 1915) Penal Code of the Russian Socialist Federal Soviet Republic (1934) Peter Margulies, Defining, Punishing, and Membership in the Community of Nations, 36 Fordham Int l L.J. 1 (2012) The Criminal Code of the People s Republic of China (1980) The Law to Change the German Penal Code (1935) Thomas Cooley, A Treatise on the Constitutional Limitations (1868)... 6 United States v. Hamdan, Redacted Record of Trial William Winthrop, Military Law & Precedents (2d ed. 1920)... 15, 30 vii

9 USCA Case # Document # Filed: 08/08/2013 Page 9 of 50 GLOSSARY OF TERMS 2006 Act...Military Commissions Act of 2006, Pub. L. No (2006) E.B.App.... Appendix to Petitioner s En Banc Brief, filed May 24, 2013 E.B.Br.... En Banc Brief for Petitioner, dated May 24, 2013 E.B.Resp.... En Banc Brief for Respondent, dated Jul. 10, 2013 E.B.Supp.App.... Supplemental Appendix to Petitioner s En Banc Brief, dated Aug. 8, 2013 CMCR... U.S. Court of Military Commission Review Resp.... Brief for Respondent, dated May 16, 2012 Resp.Supp.... Supplemental Brief of the United States, dated Jan. 9, 2013 UCMJ... Uniform Code of Military Justice, 10 U.S.C. 801, et seq. Winthrop... William Winthrop, Military Law & Precedents (2d ed. 1920) viii

10 USCA Case # Document # Filed: 08/08/2013 Page 10 of 50 SUMMARY OF ARGUMENT Vacating the judgment in this case is dictated by any straightforward application of settled law. The government tried Bahlul for three statutory offenses enacted five years after he was arrested. No one disputes the applicability of the Ex Post Facto Clause, U.S. Const., art. I 9, cl. 3. E.B.Resp. 64. No one disputes that these offenses could not be found in any statute at the time he is alleged to have committed them. The only customary law jurisdiction to exist at that time arose under Article 21 of the Uniform Code of Military Justice ( UCMJ ), 10 U.S.C. 821, and its incorporation of law of war offenses. E.B.Resp. 67. If that phrase is given its traditional meaning, the government concedes that this conviction must be vacated because none of the charged offenses were recognized under international humanitarian law. Id. 14; Supp.Resp. 21. This only becomes a hard case if one tries to devise a legal rationale for affirming this conviction. That is clear enough from the government s inability, even now, to articulate a clear rule for this Court to adopt. Instead, it asks this Court to affirm on the basis of four separate but interrelated arguments. First, this Court should defer to Congress legal judgment that the offenses here were traditionally triable before the enactment of the Military Commissions Act of 2006, Pub. L. No (2006) ( 2006 Act ). E.B.Resp Second, Article 21 should impose no judicially enforceable constraint on the 2006 Act s pre- 1

11 USCA Case # Document # Filed: 08/08/2013 Page 11 of 50 enactment application. Id Third, this Court should apply the Ex Post Facto Clause flexibly. Id. 62. Finally, the judgment against Bahlul should be given a presumption of regularity on the grounds of forfeiture. Id. 63. Each of these arguments is irreconcilable with settled law for their own specific reasons. First, Congress conclusions of law are entitled to no deference and there is no precedent for allowing Congress to circumvent the Ex Post Facto Clause by legislatively declaring what the law was. Second, if the 2006 Act s statutory offenses could not assimilate the elements of actual war crimes under Article 21, then they were not crimes until the 2006 Act was passed. Third, the suggestion that this Court apply the Ex Post Facto Clause flexibly is a naked plea for crime by analogy. Finally, the fundamental jurisdictional question of whether the offenses underlying this conviction were actually offenses is properly before this Court and should be decided on the merits. The common thread through the government s arguments is the demand for deference to its prosecutorial choices in bringing this case. This manifests itself most explicitly in the dispositive weight it places on the 2006 Act s findings of law, its flexible approach to the Ex Post Facto Clause, and its effort to wrap all of its arguments in the presumption of regularity it claims is compelled by the plain error rule. But it is also at the core of its effort to have this Court recognize a heretoforeundefined body of common law crimes rooted in domestic law. 2

12 USCA Case # Document # Filed: 08/08/2013 Page 12 of 50 The government is vague in explaining what makes up this common law. Its brief puts forward a sprawling miscellany of archival documents, most of which date back to the Civil War. There is no care taken to place these materials into their historical context. Instead, the government draws the broadest possible analogies to episodes from the infancy of military commission practice without giving this Court any standard for weighing their precedential value to the modern law of armed conflict. That standardlessness betrays this domestic common law of war for what it is no law at all. It has no limiting principle and imposes no articulable constraints. The only thing it does is confer the forms of legality on what is, in substance, judicial deference to the government s prosecutorial choices. All we ask is that this Court apply settled law to undisputed facts. None of the offenses in this case were positively identified in law at the time they were allegedly committed. They are therefore only triable if they are recognized in international law as violations of the law of war. In re Yamashita, 327 U.S. 1, 14 (1946); Ex parte Quirin, 317 U.S. 1, (1942). Because their failure to rise to that level is undisputed, this Court should vacate the judgment below. 3

13 USCA Case # Document # Filed: 08/08/2013 Page 13 of 50 ARGUMENT I. CRIMINAL CASES ARE DECIDED UNDER THE LAW AS IT WAS, NOT UNDER CONGRESS BELIEFS ABOUT WHAT IT WAS. The 2006 Act enumerated thirty stand-alone offenses for trial by military commission. The issue in this case arises because the government has proceeded on the assumption that all of those offenses are triable, no matter how many years elapsed between the conduct alleged and the law s enactment. While the government concedes that the Ex Post Facto Clause applies, it nevertheless seeks to have this Court affirm on the basis of direct and indirect pleas for deference that sap it of all substance. E.B.Resp , 54. In Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) ( Hamdan II ), this Court avoided constitutional questions by construing the 2006 Act to incorporate the ordinary presumption against retroactive criminal laws. Hamdan II, 696 F.3d at The government complains that this Court misinterpreted Congress intent respecting the 2006 Act s pre-enactment applicability. It points to 10 U.S.C. 950p (2006), which declared that all of the 2006 Act s statutory offenses were traditionally triable. E.B.Resp. 20. Congress expected all of these offenses to be triable retroactively, the reasoning goes, because Congress believed they were already triable before the law was enacted. Id

14 USCA Case # Document # Filed: 08/08/2013 Page 14 of 50 Ordinarily, the mere fact that Congress passes a declaratory law does not overcome the strong judicial presumption against retroactively applying actual changes in the law. Rivers v. Roadway Exp., 511 U.S. 298, (1994); Sikora v. American Can, 622 F.2d 1116, 1121 (3d Cir.1980) ( The repeated references in the legislative history to Congress s intent to clarify the meaning of [prior law] do not justify an inference that the amendment was to be retroactive. ). But even assuming the government s reading of the 2006 Act s legislative history is correct, the Constitution s definitional constraints on Congress legislative powers require this Court to decide for itself whether the offenses charged, pled to, instructed, and found at trial were, in fact, triable under the actual law that prevailed at the time. Weaver v. Graham, 450 U.S. 24, (1981). The government appears to believe that because the 2006 Act said its offenses were declaratory of existing law, this Court must defer to that judgment as if it were reviewing the propriety of a Congressional policy judgment about the need to disrupt terrorist organizations or the need to impress young men, but not young women, into draft registration. E.B.Resp. 41. But taking the government at its word, Congress is not making a policy judgment about what the law should be, it is purporting to make dispositive findings on what it was before, on, [and] after September 11, U.S.C. 948d(a) (2006). 5

15 USCA Case # Document # Filed: 08/08/2013 Page 15 of 50 The government cites no authority to support judicial deference to Congressional declarations of pre-existing law. Since the founding of this country, such declaratory laws have been anathema to the most basic notions of separated powers. Postmaster-General v. Early, 12 Wheat. 136, (1827) (Marshall, C.J.); Koshkonong v. Burton, 104 U.S. 668, (1881); Thomas Cooley, A Treatise on the Constitutional Limitations (1868), E.B.Supp.App ; 1 Kent s Comm. on Am. L. 513, n.b (10th ed. 1860), E.B.Supp.App. 187 ( [T]he Legislature cannot pass any declaratory law, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. It is only evidence of the sense of the legislature as to the preexisting law. ). Regardless of Congress belief about pre-enactment law, the judiciary s duty to say what the law is remains the same. Marbury v. Madison, 1 Cranch 137, 177 (1804). That is true when Congress purports to clarify international law. Wilson v. Wall, 6 Wall. 83, 89 (1867) (Congress post-ratification interpretation of a treaty only has prospective effect). And it is especially true when Congress presumes to opine on the criminal law. United States v. Stafoff, 260 U.S. 477, (1923) (Congress could not give a retrospective criminality to acts that were done before it was passed by declaring a previously repealed law to have always been in effect). [A] mistaken opinion of the legislature concerning the law, does not make law. Early, 12 Wheat. at

16 USCA Case # Document # Filed: 08/08/2013 Page 16 of 50 II. THIS MILITARY COMMISSION LACKED JURISDICTION BECAUSE NONE OF THE OFFENSES WOULD HAVE BEEN TRIABLE UNDER ARTICLE 21. Article 21 of the Uniform Code of Military Justice ( UCMJ ), 10 U.S.C. 821, was the only law on the books prior to the 2006 Act that could conceivably be said to have encompassed the war crimes jurisdiction the government asserted here. Hamdan II, 696 F.3d at The vast majority of the offenses contained in the 2006 Act assimilated the elements of offenses under customary international law, such as torture and perfidy. The government concedes, however, that the offenses brought against Hamdan and Bahlul did not. Relying on Article 21, this Court held that because the charged offenses were not war crimes before the 2006 Act s enactment, these men were unlawfully convicted of offenses that did not exist at the time of their alleged conduct. The government complains that this Court made three errors. First, Article 21 does not constrain the retroactive application of the 2006 Act. Second, even if it does, its incorporation of offenses arising under the law of war includes not just international law, but also a newly discovered domestic common law. Third, even if it applies and even if law of war refers to international law, Article 21 should be construed to have authorized whatever international law does not prohibit. Accepting any of these arguments requires this Court to repudiate settled law. 7

17 USCA Case # Document # Filed: 08/08/2013 Page 17 of 50 A. In the absence of Article 21, military commissions convened under the 2006 Act would have no jurisdiction over preenactment conduct. Section 4(a)(2) of the 2006 Act amended Article 21 to state that it does not apply to a military commission established under the 2006 Act. Section 4(a)(2) also made identical amendments to five other articles of the UCMJ that pertained to commissions. In making these amendments, there is nothing to indicate Congress intent to vary or eliminate the law of war jurisdiction Article 21 incorporated before the 2006 Act s enactment. Instead, these amendments, taken together with others, ensured that the trial of unlawful enemy combatants under the 2006 Act were legally segregated from military trials convened under the UCMJ. See also 2006 Act 4(a)(1) (amending 10 U.S.C. 802 to exclude unlawful enemy combatants from the jurisdiction of the UCMJ); 10 U.S.C. 948b(e) (2006) (prohibiting the citation of precedents from 2006 Act commissions in tribunals convened under the UCMJ). The government reads 4(a)(2) as forbidding commissions convened under the 2006 Act from assimilating the broad jurisdiction over customary international law offenses that was previously available under Article 21. E.B.Resp. 26. Doing so leaves a jurisdictional vacuum that would make the 2006 Act a nakedly ex post facto law. It would define thirty offenses that are cognizable nowhere else in federal law and made punishable without limitation to pre-enactment conduct. 8

18 USCA Case # Document # Filed: 08/08/2013 Page 18 of 50 In order to apply to pre-enactment cases, the 2006 Act would have to have assimilated its jurisdictional grant from somewhere. Even if we assume that the government s domestic common law existed at some point in history, the common law could be made a part of our federal system, only by legislative adoption. Wheaton v. Peters, 8 Pet. 591, 658 (1834). Jurisdiction over customary war crimes exists by virtue of their having been positively incorporated by reference through Article 21. Quirin, 317 U.S. at For other crimes, the courts of this country simply have no power to divine criminal jurisdiction ad hoc and there is no precedent for dispensing with the Ex Post Facto Clause so long as a statute can be construed as codifying a common law. Congress could not give a trespassing statute an unlimited historical reach simply because the common law criminalized burglary. The government tries to dismiss this objection as a constitutionalization of the Erie Doctrine. E.B.Resp The problem, however, is not Erie. It is United States v. Hudson & Goodwin, 7 Cranch 32 (1812) (Marshall, C.J.), a case the government does not cite, let alone distinguish. [O]ne may not be punished for crime against the United States unless the facts shown plainly and unmistakably constitute an offense within the meaning of an act of Congress. Donnelley v. United States, 276 U.S. 505, 511 (1928); see also In re Neagle, 135 U.S. 1, (1890). This principle applies with equal force to military offenses which, to 9

19 USCA Case # Document # Filed: 08/08/2013 Page 19 of 50 become triable and punishable by military tribunals, must be expressly created by statute. MG George B. Davis, A Treatise on the Military Law of the United States 59 (3d ed. 1915), E.B.Supp.App. 191; see also United States v. Jones, 68 M.J. 465, 471 (C.A.A.F. 2010) ( Determinations as to what constitutes a federal crime, and the delineation of the elements of such criminal offenses including those found in the UCMJ are entrusted to Congress. ). The question the government never answers is what statute plainly and unmistakably made conspiracy, solicitation, and material support war crimes at any time prior to B. The law of war is and always has been a branch of international law. The meaning of the phrase law of war in Article 21 has never been in serious doubt. E.B.Br ; see also Hamdan II, 696 F.3d at Article 21 re-enacted Article 15 of the Articles of War, which the Supreme Court interpreted as incorporating international law. Yamashita, 327 U.S. at 14; Quirin, 317 U.S. at Quirin s description of the law of war as a branch of international law can be traced to the Lieber Code s reference to that branch of the law of nature and nations which is called the law and usages of war on land. Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 Art. 40 (Apr. 24, 1863) ( Lieber Code ), E.B.Supp.App ; see also Military Commissions, 11 U.S. Op. Atty. Gen. 297, 313, 1865 AG LEXIS 36, (1865) 10

20 USCA Case # Document # Filed: 08/08/2013 Page 20 of 50 ( Offences against the laws of war must be dealt with and punished under the Constitution as the laws of war, they being a part of the law of nations[.] ). The government s traditional position has also been that Congress s reference to the law of war [in the Articles of War] was an invocation of international law. United States v. Dire, Case No , Brief of the United States, 2011 WL , at *27 (4th Cir., Jul. 22, 2011). In the context of this litigation, however, the government contends that the subject-matter jurisdiction encompassed by Article 21 s reference to the law of war includes not only offenses recognized in international humanitarian law, but also a domestic law of war. E.B.Resp The government points to no evidence suggesting that this domestic common law exists or that Congress intended the 2006 Act to codify it. 2 The government quotes from the a committee report to show that Congress intended the 2 The only case the government cites that refers to an American common law of war is Justice Stevens opinion in Hamdan, 548 U.S. at 613. The isolated use of that phrase refers to the customs and practices that regulate the wartime conduct of our own military; not domestic war crimes for which the entire world is on notice. Justice Stevens apparently placed the word American before law of war to indicate the uniquely American restraints on what otherwise might be permissible under international law. Hamdan, 548 U.S. at 610 n.38 (quoting Quirin, 317 U.S. at 29 for the constitutional limitations on military jurisdiction); see also Al Bihani v. Obama, 619 F.3d 1, 12 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the denial of rehearing en banc) (coining the phrase domestic U.S. laws of war to similarly refer to the internally imposed legal restraints that regulate the government s conduct in war). 11

21 USCA Case # Document # Filed: 08/08/2013 Page 21 of Act to apply retroactively and that it intended conspiracy, in particular, to be so triable. E.B.Resp. 23, 27 (quoting H.R. Rep. No , Pt. 1 (2006), at 24 and 25 respectively). But it neglects to disclose that in between the quotations it presents, the report explains that Congress believed this was lawful because the 2006 Act was meant to be a codification of the law of war into the United States Code pursuant to Congress s constitutional authority to Define and Punish Offences against the Law of Nations. Id. at 24, E.B.Supp.App 113. No court has ever suggested that there is a domestic body of common law crimes that can be applied extraterritorially and in the absence of any statutory mandate for their judicial creation. Just two months ago, this Court held that the federal conspiracy statute does not apply to the offense of piracy, precisely because [i]nternational law does not permit the government s abortive use of universal jurisdiction to charge Ali with conspiracy. United States v. Ali, 718 F.3d 929, 942 (D.C. Cir. 2013). While the government makes passing references to Ali to support ancillary points in its brief, it neither addresses this Court s holding on conspiracy nor explains what gave birth to a domestic common law that has a broader extraterritorial reach than Title 18. The government s position is not even endorsed by its amici. If one goes to the journal article on which the Margulies & Schoettler brief is based, one sees its author opine that [f]rom the Framers perspective, a US common law of war 12

22 USCA Case # Document # Filed: 08/08/2013 Page 22 of 50 would have made as much sense as a US law of physics. Peter Margulies, Defining, Punishing, and Membership in the Community of Nations, 36 Fordham Int l L.J. 1, 5 (2012). The only authority the government cites that endorses its view implicitly is Haridimos Thravalos, History, Hamdan, and Happenstance, 3 Harv. Nat l Sec. J. 223 (2012). E.B.Resp. 37, 39. Though this fact is not disclosed in the government s brief or within the Thravalos article, its author is a military commission prosecution staff attorney. David Glazier, The Misuse of History, Loyola-LA Legal Studies Paper No , at (2013). 3 The government is therefore asking this Court, sitting en banc, to be the first to endorse a domestic common law that only its employees support and that its own amicus ridicules. 2. Seven justices in Hamdan agreed that Article 21 incorporates the traditional jurisdictional distinctions between three types of military commissions. Hamdan v. Rumsfeld, 548 U.S. 557, 597 (2006) (plurality op.); id. at (Thomas, J., dissenting). These distinctions were also embedded in Article of War 15. Within a decade of its passage, the Army instructed its commanders on the three types of authorities under which tribunals other than courts-martial can be brought, as well as the distinct bases of their jurisdiction: 1) martial law, which is borne out of necessity and the need to protect the citizenry when domestic institutions are unable to maintain order; 2) military government, wherein 3 Available at 13

23 USCA Case # Document # Filed: 08/08/2013 Page 23 of 50 international law authorizes an occupying force to run the courts in foreign occupied territory; 3) law-of-war military commissions, which are convened to try war crimes grounded in international law. Military Aid to the Civil Power (1925), E.B.Supp.App The government selectively cites examples from the Civil War in ways that obfuscate these distinctions and ignore the lasting lessons from that era. Throughout the Civil War, the government s position was that all crimes and misdemeanors, of however high a character, which have occurred during the progress and as a part of the war, however great the criminals, either civil or military, should be tried upon the scene of the offense [and] that justice should be meted out in such cases, by military commissions, through the strong arm of the military law which the offenders have invoked, and to which they have appealed to settle their rights. Ex parte Milligan, 4 Wall. 2, 106 (1866) (argument of counsel). The government viewed the entire country as under some form of martial law and acted on the assumption that military commanders could convene commissions to try any offense whenever and wherever expedient. The Supreme Court rejected this because [m]artial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Id. at

24 USCA Case # Document # Filed: 08/08/2013 Page 24 of 50 There is consequently no way of knowing whether the military commission prosecutions cited by the government were understood as predicated on war crimes, martial law, or some hybridization of the two. In fact, Winthrop describes all of the government s marquee examples i.e., the Lincoln Assassins, Murphy, Grenfel, and Wirz as hybrid commissions, which conflated their jurisdiction over war crimes and their jurisdiction over crimes and statutory offences cognizable by State or U.S. courts, which would properly be tried by such courts if open and acting[.] William Winthrop, Military Law & Precedents 839 n.5 (2d ed. 1920) ( Winthrop ), E.B.Supp.App While these all pre-date Milligan, the most notable is the Murphy case, which the government cites three separate times as Civil War-era authority for a conspiracy prosecution held where the civilian courts were functioning. E.B.Resp. 44; id. 36, 43 n.14. This is despite the fact that Justice Miller vacated Murphy s conviction on habeas corpus precisely because martial law had been lifted by the time of his trial. In re Murphy, 17 F.Cas (C.C.D.Mo. 1867). The government drops a footnote that tries to distinguish this fact away on the ground that [n]othing in Justice Miller s decision suggested that a properly convened military commission could not try conspiracy. E.B.Resp. 37 n.10. But Justice Miller specifically held that the writ had to issue because Murphy was tried by 15

25 USCA Case # Document # Filed: 08/08/2013 Page 25 of 50 and held under the sentence of a court which had no jurisdiction of his person or of his offence. Murphy, 17 F.Cas. at 1032 (emphasis added). Murphy is therefore a perfect illustration of why examples from the Civil War provide at best murky guidance for what the law of war is today. Hamdan II, 696 F.3d at All of these examples were in part military tribunals governing certain territory which are a separate form of military commission subject to a separate branch of law, and not the kind of law-of-war military commission at issue here. Id. Far from plainly and unequivocally establishing common law crimes, their precedential value is therefore limited. Id. 3. For cases like this one, the controlling cases are Quirin and Yamashita, which construed Article 21 s predecessor as incorporating jurisdiction over offenses against the law of nations which pertain to the conduct of war[.] Quirin, 317 U.S. at The government discounts what it describes as a cursory reference to Quirin in Article 21 s legislative history[.] E.B.Resp. 59, n.18. But Article 21 s legislative history is replete with references to the fact that its language was carried over from Article of War 15 because the Supreme Court had authoritatively construed it in Quirin and Yamashita. S. Rep. No (1949), at 13, E.B.Supp.App. 131; Uniform Code of Military Justice: Text, References and Commentary based on the Report of the Committee on a Uniform Code of Military Justice to The Secretary of Defense, Feb. 9, 1949, at 31, 16

26 USCA Case # Document # Filed: 08/08/2013 Page 26 of 50 E.B.Supp.App The legislative history also shows that its authors had a clear understanding of what the law of war was: Mr. Smart. May I raise one technical question here while Colonel Dinsmore is on his feet. In line 13 the words are used law of war. I am wondering if that should not say laws of war. I think laws of war are words of art which have a specific meaning, whereas law of war, I doubt, would have the same meaning. What is your reaction to that? Colonel Dinsmore. The present article says law of war. Mr. Brooks. What is a law of war? Colonel Dinsmore. Law of war is set out in various treaties like the Geneva convention and supplements to that. Mr. Brooks. International law. Colonel Dinsmore. Yes, sir. Hearings on H.R (1949), at 959, E.B.Supp.App Moreover, Congress relied upon Quirin s holding that war crimes jurisdiction emanated out of the Define & Punish Clause when it passed the War Crimes Act in H.R. Rep. No (1996), at 7, E.B.Supp.App The government insists, nevertheless, that Article 21 must encompass offenses other than war crimes because spying and aiding the enemy are triable by military commission, even though they are not war crimes... specified by international law. E.B.Resp. 30 (quoting Hamdan II, 696 F.3d at 1246 n.6 (Kavanaugh, J., concurring)). But as this Court noted, Article 21 reaches any offenders or offenses that by statute or by the law of war may be tried by military 17

27 USCA Case # Document # Filed: 08/08/2013 Page 27 of 50 commissions. 10 U.S.C. 821 (emphasis added). The military has had the statutory authority to try spying and aiding the enemy since Journals of the Continental Congress, , 5:693 (GPO 1904) (making certain civilian spies triable by court-martial), E.B.Supp.App. 139; id. at 5:799, E.B.Supp.App. 140 (revising the Articles of War to make all aiding the enemy offenses triable by court-martial). Regardless of their precise status under international law, they are sui generis examples of offenses that by long-continued and consistent interpretation are triable by the military because statutes have made them so triable since before the Constitution s adoption. Quirin, 317 U.S. at C. Article 21 s common law jurisdiction extends only to war crimes recognized under international law. The government s final argument is that even if Article 21 applies and even if the law of war is international law, Article 21 should be read as authorizing whatever international law does not prohibit. E.B.Resp At the outset, it is important to note that regardless of whether the government s alternative reading of Article 21 is reasonable, it cites no authority endorsing this construction. Nor does it explain why this Court can or should interpret Article 21 any differently than the Supreme Court did in Quirin, Yamashita, and Hamdan. If Congress actually intended Article 21 to give the military free-reign over the prosecution of domestic crimes, the government s constitutional problems only 18

28 USCA Case # Document # Filed: 08/08/2013 Page 28 of 50 become more daunting. There are undoubtedly many countries that send all sorts of crimes to military tribunals and there is little international law to constrain such a practice. International law allows many things that the Constitution does not. In claiming that Article 21 s only jurisdictional limit is what international does not forbid, the government is asking for no limit at all. It is asking for an interpretation of Article 21 that provokes a direct conflict with Article III s core reservation of judicial authority over the trial of all crimes. U.S. Const., art. III 2; Quirin, 317 U.S. at 29 (opining that offenses other than war crimes would not be triable by military tribunal here... because they are of that class of offenses constitutionally triable only by a jury. ); Military Commissions, 11 U.S. Op. Atty. Gen. at 310 ( [T]hough the laws of war, being a part of the law of nations, constitute a part of the laws of the land, that those laws must be regarded as modified so far and whenever they come in direct conflict with plain constitutional provisions. ). Under the traditional interpretation of Article 21, there is no constitutional conflict. The Supreme Court has traditionally read the Define & Punish Clause as implicitly creating a narrow exception that allows the military to conduct war crimes prosecutions, since at the time of the founding war crimes were understood to be outside of Article III s mandatory jurisdiction. Quirin, 317 U.S. at 40. The Define & Punish Clause, however, is not a blank check. Congress power to punish offenses against the law of nations is textually constrained to the actual law of 19

29 USCA Case # Document # Filed: 08/08/2013 Page 29 of 50 nations. The Antelope, 10 Wheat. 66, 122 (1825) (Marshall, C.J.) (invalidating Congressional efforts to criminalize the slave trade, which had been prohibited in the United States and Great Britain, but had not yet ripened into a universally binding rule of international law); United States v. Palmer, 3 Wheat. 610, (1818) (Johnson, J., concurring) ( Congress cannot make that piracy which is not piracy by the law of nations, in order to give jurisdiction to its own courts over such offenses. ); United States v. Bellaizac-Hurtado, 700 F.3d 1245, (11th Cir. 2013) (the extraterritorial application of the Maritime Drug Law Enforcement Act was beyond Congress power under the Define & Punish Clause). Finally, supposing the government s revised interpretation of Article 21 were constitutional, it cannot help the government in this case. The question here is not what international law or the Constitution could allow. It is what class of offenses Article 21 encompassed prior to the 2006 Act s enactment. That was settled in Quirin and Yamashita as limited to offenses that are recognized in international law as violations of the law of war. Yamashita, 327 U.S. at 14; Quirin, 317 U.S. at Even if the Supreme Court decided to revisit that holding, a more expansive reading of Article 21 s jurisdictional grant could still only have prospective effect. Bouie v. Columbia, 378 U.S. 347, 353 (1964). 20

30 USCA Case # Document # Filed: 08/08/2013 Page 30 of 50 III. THE GOVERNMENT S FLEXIBLE APPROACH TO THE EX POST FACTO CLAUSE IS A STANDARDLESS EXERCISE IN CRIME BY ANALOGY. The government does not dispute that the crimes charged in this case are not war crimes as that phrase is ordinarily understood. It also does not dispute that no statute prohibited these offenses at the time Bahlul is alleged to have committed them. Its arguments for why his conviction should nevertheless be affirmed do not rest on a rule that it wants this Court to adopt. Rather, it depends on this Court s willingness to apply the Ex Post Facto Clause flexibly. E.B.Resp The government s flexible approach provides no generally applicable standard to guide the resolution of this or future cases. This Court s only apparent obligation is to ensure that Bahlul s prosecution was broadly consistent with the Ex Post Facto Clause s general purposes. E.B.Resp. 68. Seizing upon language from Supreme Court opinions that have identified one of its rationales as preventing the punishment of conduct that was innocent when done, the government maintains that irrespective of the offenses charged, its only burden on appellate review is to establish that Bahlul should have understood the self-evidently criminal nature of his conduct. Id. 69. This argument is as dangerous as it is mistaken. However phrased, it is a plea for crime by analogy. The government suggests that Bahlul s criminality is obvious because he may have come close to violating other laws. E.B.Resp

31 USCA Case # Document # Filed: 08/08/2013 Page 31 of 50 The CMCR affirmed because Bahlul s conduct was akin to, similar to, essentially analogous to, virtually identical to, as well as share[d] attributes with and drew analogical support from dozens of laws and lines of legal authority. United States v. Bahlul, 820 F.Supp.2d 1141, 1203, 1208, 1210 n.93, 1220, 1226, 1227, 1233, 1235, 1241; 1198, 1209, 1214, 1217, 1218, 1226, 1233; 1203; 1208; 1214; 1217 (U.S.C.M.C.R. 2011). Crime by analogy has a sordid history 4 that our courts consistently condemn. See, e.g., Papachristou v. Jacksonville, 405 U.S. 156, 169 (1972); United States v. Yousef, 327 F.3d 56, 99 (2d. Cir. 2003). The law of war forbids it as a war crime. Rome Statute of the International Criminal Court, 37 I.L.M. 999, art. 22(2) (1998); The Justice Trial, 6 L. Rep. T. War Crim. 1, 95 (1946), E.B.Supp.App. 95 ( [A]pplication of principles of law condemned by the practice of civilised nations such as punishment by analogy are properly classed as war crimes subjecting every judicial or administrative official associated with the proceedings, the judgment, or execution of the sentence, to punishment as a war criminal. ). 4 See, e.g., The Law to Change the German Penal Code, art. 2 (1935) (quoted in The Justice Trial, 6 L. Rep. T. War Crim. 1, 7 (1946)), E.B.Supp.App. 8; The Penal Code of the Russian Socialist Federal Soviet Republic, art. 16 (1934), E.B.Supp.App. 180; The Criminal Code of the People s Republic of China, art. 79 (1980), E.B.Supp.App China abolished crime by analogy in 1997 and now requires offenses to be expressly defined in the laws as a criminal act[.] Criminal Law of the People s Republic of China, art. 3 available at 22

32 USCA Case # Document # Filed: 08/08/2013 Page 32 of 50 The actual practice of prominent international tribunals is no different than what one would expect from our federal courts when it comes to ex post facto. In Prosecutor v. Stakic, Judgment, IT A, 2006 WL (I.C.T.Y. App. Ch., Mar. 22, 2006), the accused was anything but morally innocent. He was convicted of murder, extermination, forcible deportation, and other crimes against humanity. On the charge of deportation, the prosecution failed to prove that he expatriated his victims across an international border. The Trial Chamber held this element was a technicality because the offense s underlying rationale was to protect victims from being displaced far from their homes. The Appeals Chamber reversed because doing so expand[ed] criminal responsibility by giving greater scope to the crime of deportation than exists under customary international law, and thus violate[ed] the principle of nullum crimen sine lege. Id. at 302. Despite the moral opprobrium that has been heaped onto Bahlul, this case is a perfect illustration of the dangers embedded in the government s flexible approach. From the initial charging up until its most recent briefing, this case has been a test-case for inchoate war crimes. None of the charges alleged Bahlul s culpability for a completed offense. The jury instructions on the nature of the offenses were literally textbook and emphasized that proof that [any underlying offenses] actually occurred is not required. Tr. 848, E.B.Supp.App. 63. The members were not asked to link Bahlul to any terrorist plot and made no findings 23

33 USCA Case # Document # Filed: 08/08/2013 Page 33 of 50 on any underlying offense, let alone that he was guilty of one. Until now, the inchoate nature of Bahlul s offenses has been assumed. See, e.g., Resp.Supp 3 ( Although the Hamdan II Court did not address whether the inchoate conspiracy and solicitation counts on which Bahlul was also convicted constituted violations of the international law of war, the government acknowledged in its opening brief that neither conspiracy nor solicitation has attained international recognition at this time as an offense under customary international law. ); Bahlul, 820 F.Supp.2d at 1233 (heading a section with International Law and Inchoate Liability. ). Nevertheless, the government asks this Court to peer into the looking glass and see that a singular reference to September 11 th in Bahlul s charge sheet demonstrates that he was actually guilty, not of conspiracy, but of some underlying crime via a conspiratorial/joint criminal enterprise theory of liability. E.B.Resp. 46. This is despite the fact that this legal theory is advanced for the first time on appeal. Chiarella v. United States, 445 U.S. 222, (1980). It is despite the prosecution s abandonment of this theory at trial and its motion to strike all allegations that Bahlul joined a criminal enterprise. Tr , E.B.Supp.App And it is despite the fact that when Col. Gregory accidentally mentioned the word enterprise in his jury instructions, he stopped and admonished the members to please strike the words or enterprise, that s not before you. Tr. 868, E.B.Supp.App

34 USCA Case # Document # Filed: 08/08/2013 Page 34 of 50 The government mounted a week-long criminal trial that overwhelmingly centered on Bahlul s production of a film. It now shifts focus to his passing interaction with two of the September 11 th hijackers in late 1999; a month before these individuals were brought into the plot and just before Bahlul returned home to Yemen. E.B.Br. 4. The evidence of this interaction is gleaned from a letter in which Bahlul claims to have facilitated their pledges of loyalty to bin Laden and to have later transcribed the videos of their wills. E.B.Br. 7; E.B.App The charge sheet presented these claims as arranging their pledges and preparing their wills. E.B.App Now, to this Court, it is claimed that Bahlul administered their pledges and groomed them to carry out the September 11 th attacks. This spin on the charges appears to have come from two pages of the record wherein the prosecution asks an FBI witness to comment about al Qaeda s methods generally, not about what Bahlul did. Tr , E.B.Supp.App The actual testimony on Bahlul s travels showed that he did not even know who these men were until after the fact. E.B.Br. 7; E.B.App Resolving these types of factual nuances should be irrelevant to the basic jurisdictional questions before this Court. McCormick v. United States, 500 U.S. 257, 270 n.8 (1991) ( Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury. ). The fact that they have arisen at all demonstrates the 25

35 USCA Case # Document # Filed: 08/08/2013 Page 35 of 50 perils of the flexible sentence first verdict afterwards approach to appellate review this Court is being asked to embrace. Lewis Carroll, Alice s Adventures in Wonderland 187 (1865), E.B.Supp.App If criminal liability is not determined by the elements of the offenses charged, pled, proven, instructed, and found, then war criminality becomes an exercise in linguistic slight-of-hand, the post hoc characterization of trial testimony, and the imputation of liability for the world s most serious crimes. In Hamdan II, the government made similar pleas to construe the material support charges brought against bin Laden s courier as imputing a conviction for aiding and abetting terrorist attacks. This was based on a record that showed the defendant happily drove the getaway car for al Qaeda s leadership as they fled to Tora Bora after September 11 th. United States v. Hamdan, Redacted Record of Trial, at , E.B.Supp.App This Court s refusal to bend the law was straightforward. If the Government wanted to charge Hamdan with aiding and abetting terrorism or some other war crime that was sufficiently rooted in the international law of war (and thus covered by 10 U.S.C. 821) at the time of Hamdan s conduct, it should have done so. Hamdan II, 696 U.S. at Bahlul was entitled to be informed of the charges against him, not the general conduct of a criminal nature in which he is alleged to have been involved, which will be flexibly interpreted on appeal. 10 U.S.C. 948q(b) (2006); Dunn v. 26