USCA Case # Document # Filed: 01/22/2013 Page 1 of 54

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1 USCA Case # Document # Filed: 01/22/2013 Page 1 of 54

2 USCA Case # Document # Filed: 01/22/2013 Page 2 of 54 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES I. PARTIES AND AMICI APPEARING BELOW The parties and amici who appeared before the Court of Military Commission Review in connection with this appeal were: 1. Ali Hamza Ahmad Suliman al Bahlul, Appellant 2. United States of America, Appellee 3. Amicus Curiae the Office of the Chief Defense Counsel, Col Peter Masciola, USAF (on brief) 4. Amicus Curiae Robert David Steele and Others in the United States Intelligence Community, McKenzie Livingston (on brief) 5. Amicus Curiae Historians, Political Scientists and Constitutional Law Professors, Sarah Paoletti (on brief) 6. Amicus Curiae National Institute of Military Justice, Michelle Lindo (on brief) 7. Amicus Curiae Montana Pardon Project, Jeffrey Renz (on brief) 8. Amicus Curiae Human Rights Committee of the American Branch of the International Law Association, Jordan J. Paust (on brief) 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: 01/22/2013 Page 3 of 54 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 provided at App and 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. However, the issues briefed herein relate to this Court s decision in Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012). Dated: January 22, 2013 By: /s/ Michel Paradis Counsel for Petitioner ii

4 USCA Case # Document # Filed: 01/22/2013 Page 4 of 54 TABLE OF CONTENTS Table of Authorities... iv Glossary of Terms... vi Summary of Argument... 1 Argument... 2 I. This Court correctly declined to apply the 2006 Act retroactively II. This Court correctly declined to fashion a new doctrine called the U.S. common law of war to save the convictions in these cases Certificate of Compliance with Rule 32(a) Certificate of Service Addendum iii

5 USCA Case # Document # Filed: 01/22/2013 Page 5 of 54 Cases TABLE OF AUTHORITIES Boumediene v. Bush, 553 U.S. 723 (2008)... 4 Ex parte Milligan, 4 Wall. 2 (1866)... 4 Ex parte Quirin, 317 U.S. 1 (1942)...4, 9 FAA v. Cooper, 132 S.Ct (2012)... 6 Graham v. Florida, 130 S.Ct (2010) Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012)... 1, 2, 5, 6, 8 Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990)... 3 Landgraf v. USI Film, 511 U.S. 244 (1994)... 2 Lawrence v. Texas, 539 U.S. 558 (2003) Lindh v. Murphy, 521 U.S. 320 (1997)... 3 Marbury v. Madison, 1 Cranch 137 (1803)... 4 Murray v. Charming Betsy, 2 Cranch 64 (1804) Roper v. Simmons, 543 U.S. 551 (2005) Trop v. Dulles, 356 U.S. 86 (1958) United States v. Klein, 80 U.S. 128 (1871)... 4 United States v. Morrison, 529 U.S. 598 (2000)... 4 United States v. Robel, 389 U.S. 258 (1967)... 4 U.S. Code 10 U.S.C , 8 10 U.S.C. 948d (2006) U.S.C. 948d (2009) U.S.C iv

6 USCA Case # Document # Filed: 01/22/2013 Page 6 of 54 Miscellaneous H.W. Halleck, International Law (D. Van Nostrand 1861)... 9 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat Journals of the Continental Congress, (GPO 1904)... 8 M. de Vattel, The Law of Nations (1758, ed. Joseph Chitty, T. & J.W. Johnson Co. 1867)... 8 MG George B. Davis, A Treatise on the Military Law of the United States (3d Ed., John Wiley & Sons 1915)... 9 T.W. Gregory, Trial of Spies by Military Tribunals, 31 Op. Atty. Gen. 356 (1918)... 9 United States v. Dire, Case No , Brief for the United States, 2011 WL (4th Cir. Jul. 22, 2011)... 7 William Winthrop, Military Law & Precedents (2d ed., GPO 1920)... 9 v

7 USCA Case # Document # Filed: 01/22/2013 Page 7 of 54 GLOSSARY OF TERMS 2006 Act...Military Commissions Act of 2006, Pub. L. No (2006) 2009 Act... Military Commissions Act of 2009, Pub. L. No (2009) App.... Appendix I (unless otherwise noted) CMCR... U.S. Court of Military Commission Review Pet. Br.... Brief for the Petitioner Pet. Supp.... Supplemental Brief for the Petitioner Rep. Br.... Reply Brief for the Petitioner Resp. Br.... Brief for the Respondent Resp. Supp.... Supplemental Brief for the Respondent Resp. App.... Respondent s Appendix Supp. App.... Petitioner s Supplemental Appendix UCMJ... Uniform Code of Military Justice, 10 U.S.C. 801, et seq. vi

8 USCA Case # Document # Filed: 01/22/2013 Page 8 of 54 SUMMARY OF ARGUMENT We agree with the government that Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) ( Hamdan II ), compels this Court to vacate the judgment below. Resp. Supp The government stands by its concession that none of the charges against Bahlul are international-law war crimes. Consequently, those charges were not triable by a military commission. We take no position on the government s demand to dispense with oral argument. Resp. Supp. 1. Win or lose on the narrow question answered in Hamdan II, Bahlul remains in custody and may be subject to retrial. Counsel defers to this Court as to whether further argument on this issue or any of the other issues in this case would be helpful. We disagree with the government s retread of the arguments this Court rejected in Hamdan II. We rely on our prior briefing and this Court s opinion, but wish to make two additional points that go to Congressional intent. First, there is no indication that Congress intended the 2006 Act to proscribe offenses retroactively. Second, there is no indication that Congress ever embraced the government s novel U.S. common law of war doctrine or the breakdown in the international laws governing armed conflict that it invites. 1

9 USCA Case # Document # Filed: 01/22/2013 Page 9 of 54 ARGUMENT I. THIS COURT CORRECTLY DECLINED TO APPLY THE 2006 ACT RETROACTIVELY. The allegations against Bahlul and Hamdan predated the 2006 Act by five or more years. The straightforward question this Court confronted in Hamdan II was whether the 2006 Act should be construed to make all of its substantive offenses retroactively applicable, irrespective of whether Congress had previously criminalized them. This Court concluded that it should not, because the alternative would bring the 2006 Act into conflict with the Ex Post Facto clause. Hamdan II, 696 F.3d at The government claims that this Court erred because Congress did, in fact, intend all of the 2006 Act s enumerated offenses to be chargeable, irrespective of the law prevailing at the time an offense was allegedly committed. To prove this Court erred, the government must overcome the strong presumption against the retroactive applicability of any law. [T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. Landgraf v. USI Film, 511 U.S. 244, 265 (1994). The government must show that the 2006 Act contains a clear statement of Congressional intent to give any change it made to existing law a nunc pro tunc 2

10 USCA Case # Document # Filed: 01/22/2013 Page 10 of 54 effect. Lindh v. Murphy, 521 U.S. 320, , n.4 (1997); Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, (1990) (Scalia, J., concurring) (collecting cases). It must point to a provision of the statute that clearly shows Congress intended the 2006 Act s enumeration of offenses to displace whatever law applied at the time a crime allegedly occurred. In evaluating the government s claims, it is important to remember that Congress knows how to write laws with retroactive effect. One need only look to the level of clarity it used in its contemporaneous amendments to the War Crimes Act Act 6(b). After enumerating specific offenses triable under the War Crimes Act, Congress added a specific subsection entitled, Retroactive Applicability, which clarified that the amendments made by this subsection shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law (as amended by section 4002(e)(7) of Public Law ). Id. 6(a)(2). The government s best candidate for why military commission offenses should also have retroactive applicability is 10 U.S.C. 950p (2006). The government claims that this section proves Congress believed that jurisdiction over such offenses [as conspiracy, solicitation, and material support] based on conduct committed prior to 2006 is appropriate and consistent with ex post facto principles. Resp. Supp. 6. For its part, 950p states that the 2006 Act s purpose 3

11 USCA Case # Document # Filed: 01/22/2013 Page 11 of 54 was to not establish new crimes but to codify existing crimes and that its intended effect was to be declarative of existing law. The government maintains that this should be construed as a rule of decision as to what the law is and was. Resp. Supp ( courts should afford deference to the determination of the political branches that conspiracy to commit war crimes is an offense that has been traditionally subjected to military commission jurisdiction. ). If the government s reading is correct, 950p was patently unconstitutional. United States v. Klein, 80 U.S. 128, (1871). The government suggests otherwise based on a string cite of cases counseling deference to the political branches national security policies. Resp. Supp But none of those cases held that the talismanic incantation of the war power turns the courts into agencies; constrained to apply the political branches view of what the law should have been. A longer string cite of cases stands for the opposite proposition. See, e.g., Boumediene v. Bush, 553 U.S. 723, 765 (2008); United States v. Robel, 389 U.S. 258, (1967); Ex parte Quirin, 317 U.S. 1, 19 (1942); Ex parte Milligan, 4 Wall. 2, (1866); Marbury v. Madison, 1 Cranch 137, 177 (1803). The better reading, and the one this Court adopted, is that 950p was nothing more than a Congressional finding. Such findings are neither dispositive nor capable of self-adjudicating a statute s constitutionality. United States v. Morrison, 529 U.S. 598, 614 (2000). This Court accordingly evaluated the truth of this 4

12 USCA Case # Document # Filed: 01/22/2013 Page 12 of 54 finding on its own merits and correctly held, based in part on the government s own concessions, that its premise was incorrect. The statute does codify some new war crimes[.] Hamdan II, 696 F.3d at Section 950p is neither a retroactivity clause nor a clear statement that Congress wanted military commissions to try offenses that were not triable by military commission when committed. To the contrary, Congress well understood when it appended this unusual statement to the statute [that] the U.S. Constitution bars Congress from enacting punitive ex post facto laws. Hamdan II, 696 F.3d at The government s labored effort to prove otherwise only further confirms that this Court was correct to hold that Congress would not have wanted new crimes to be applied retroactively. Id. at 1248 (emphasis in original). II. THIS COURT CORRECTLY DECLINED TO FASHION A NEW DOCTRINE CALLED THE U.S. COMMON LAW OF WAR TO SAVE THE CONVICTIONS IN THESE CASES. The government created the U.S common law of war for its briefing to this Court in Hamdan II and this case. We will not reiterate the arguments put forward in our Reply Brief for why this doctrine is both novel and unsupported by the government s own sources. We would simply note that the government still fails to disclose or account for significant adverse precedent. This includes its reliance on cases that were reversed on the very point of law for which they are 5

13 USCA Case # Document # Filed: 01/22/2013 Page 13 of 54 cited; such as the so-called Murphy commission, which was invalidated by a sitting Supreme Court justice on habeas review. Rep. Br Its mere novelty, however, is not the greatest problem for the government s new legal doctrine. The overriding problem is that this new doctrine is so unusual and unnecessary that it strains credulity to believe that Congress thought it was authorizing it. For all of its emphasis on legislative history, the government cannot point to a single use of the phrase U.S. common law of war by Congress, nor anything to suggest that Congress repeated use of the phrase law of war in the 2006 and 2009 Acts was intended to depart from its universally understood definition as a branch of international law. Quirin, 317 U.S. at 29; see also Hamdan II, 696 F.3d at ; Rep. Br [I]t is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken[.] FAA v. Cooper, 132 S.Ct. 1441, 1449 (2012) (internal quotations omitted). The notion that the government s redefinition of the law of war is consistent with Congressional intent becomes increasingly implausible when one considers that the 2006 Act s enumeration of offenses was explicitly nonexhaustive. The 2006 Act provided that a military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the 6

14 USCA Case # Document # Filed: 01/22/2013 Page 14 of 54 law of war[.] 10 U.S.C. 948d(a) (2006) (emphasis added); see also 10 U.S.C. 948d (2009). Given that historical analogies can be found for anything, particularly from the Civil War era, the government s interpretation of the 2006 Act requires this Court to believe that Congress intended to vest military commissions with near-unlimited jurisdiction. To be sure, under the government s reading, a military commission could try any offense, so long as some archival document can be disinterred to show a historical example. The government casts vague excerpts from the legislative histories of Article 21 of the UCMJ and its predecessor in the Articles of War as supportive of its new theory. Resp. Supp But even in the best light for its argument, these snippets do nothing to show that Congress believed that either statute, let alone the 2006 Act, tacitly authorized the judicial creation of a U.S. common law of war. Indeed, until this litigation, the government s position has 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 for the United States, 2011 WL , at *27 (4th Cir. Jul. 22, 2011). The government argues, nevertheless, that there must be a U.S. common law of war because spying and aiding the enemy are historically triable by military tribunals, even though they have not attained international recognition as offenses under customary international law. Resp. Supp This argument is, 7

15 USCA Case # Document # Filed: 01/22/2013 Page 15 of 54 in part, a red herring. Article 21 of the UCMJ reached any offenders or offenses that by statute or by the law of war may be tried by military commissions. 10 U.S.C Just as Judge Kavanaugh suggested that the 2006 Act s offenses may be triable for post-2006 conduct irrespective of international law, Hamdan II, 696 F.3d at 1246 n.6, the international law status of spying and aiding the enemy may be irrelevant, insofar as the military has had the statutory authority to try them since Journals of the Continental Congress, , 5:693 (making all spies triable by court-martial) (GPO 1904); id. at 5:799 (revising the Articles of War to make all aiding the enemy offenses triable by court-martial). The fatal flaw in the government s argument, however, is that spying and aiding the enemy have been subjects of international law for centuries. See, e.g., M. de Vattel, The Law of Nations 375, 400 n.179 (1758, ed. Joseph Chitty, T. & J.W. Johnson Co. 1867) (discussing spying and aiding the enemy respectively); 1 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat. 2277, arts (regulating the treatment of spies). If ambiguity persists about their precise status under international law, it is only because of how sui generis they are; not because they form the tip of a U.S. common law of war iceberg. 1 The relevant excerpts from Vattel and the other scholarly source referenced in footnote 2 are available online, but have also been included for the Court s convenience in the addendum to this brief. 8

16 USCA Case # Document # Filed: 01/22/2013 Page 16 of 54 Spying, in particular, has been described in every conceivable way by the preeminent authorities on international law. 2 When the Supreme Court held that spies are offenders against the law of war, Quirin, 317 U.S. at 31, it may have accepted a contestable interpretation of international law. But there is no question that the Court understood itself to be interpreting international law. Id. at And insofar as Bahlul is not accused of being a spy, the only relevance the enduring controversy over spying has to this case is in exposing how contrived the government s arguments have become. Of all the ways in which the punishment of spies has been justified over the centuries, its place within the U.S. common law of war has never been one of them. 2 Vattel and Halleck refer to spying as an odious form of treachery that military commanders can passively exploit but never order. Vattel, at 375; H.W. Halleck, International Law (D. Van Nostrand 1861). Winthrop, for his part, describes it as a military offense arising under the laws of war. William Winthrop, Military Law & Precedents 769 (2d ed., GPO 1920). The authoritative turn-of-the-century treatise by MG George B. Davis, the Judge Advocate General of the Army and a delegate to the drafting conferences for the Geneva and Hague Conventions, states unequivocally that it is an offense against the laws of war[.] MG George B. Davis, A Treatise on the Military Law of the United States 53 (3d Ed., John Wiley & Sons 1915). Whereas the Attorney General opined in 1918 that [t]he spy dealt with in the laws of war is not engaged in anything criminal [and] if caught within the lines, the spy is tried by court-martial and executed, not because he has committed a crime, but, probably, because in this way this method of warfare is made as dangerous and unsafe as possible, and all possibility of the spy s information reaching the enemy is destroyed. T.W. Gregory, Trial of Spies by Military Tribunals, 31 Op. Atty. Gen. 356, 363 (1918). 9

17 USCA Case # Document # Filed: 01/22/2013 Page 17 of 54 At bottom, the government asks this Court to create a new legal doctrine that balkanizes an important area of international law. The Supreme Court has never endorsed such parochialism and has sought instead to ensure that Congressional statutes and the Constitution alike are read in harmony with international law to the greatest extent possible. See, e.g., Graham v. Florida, 130 S.Ct. 2011, (2010); Roper v. Simmons, 543 U.S. 551, (2005); Lawrence v. Texas, 539 U.S. 558, , 576 (2003); Trop v. Dulles, 356 U.S. 86, (1958); Murray v. Charming Betsy, 2 Cranch 64, 118 (1804). The government asks this Court to undermine the very unifying effect the laws of war are intended to have as minimum standards of conduct applicable in armed conflict. If there is a U.S. law of war then there is a Syrian law of war, a Russian law of war and an Iranian law of war. It sets an example that exposes American military personnel, diplomats, journalists, and tourists to the dangers of a world where the law of war is determined by the caprice of a captor. If that is what Congress intended to accomplish with the 2006 Act, one would expect a far clearer statement to that effect than anything the government has put forward. 10

18 USCA Case # Document # Filed: 01/22/2013 Page 18 of 54 CONCLUSION For the reasons stated above and in Petitioner s prior briefing, the commission judgment should be vacated. Respectfully submitted, /s/ Michel Paradis Michel Paradis CAPT Mary McCormick, JAGC, U.S. Navy 1620 Defense Pentagon Washington, DC michel.paradis@osd.mil TEL: x115 FAX: MAJ Todd E. Pierce, JA, U.S. Army (Ret.) Senior Fellow Univ. of Minnesota Human Rights Center Mondale Hall, N th Avenue South Minneapolis, MN Counsel for Petitioner 11

19 USCA Case # Document # Filed: 01/22/2013 Page 19 of 54 CERTIFICATE OF COMPLIANCE WITH RULE 32(A) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitations imposed by this Court s order in this case of October 25, 2012 because: X this brief is less than 15 pages, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or this brief uses a monospaced typeface and contains lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: X this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 point font size and Times New Roman type style; or this brief has been prepared in a monospaced typeface using with. Dated: January 22, 2013 Respectfully submitted, /s/ Michel Paradis Counsel for Petitioner 12

20 USCA Case # Document # Filed: 01/22/2013 Page 20 of 54 CERTIFICATE OF SERVICE I hereby certify that on January 22, 2013 a copy of the foregoing was filed electronically with the Court. Notice of this filing will be sent to all parties by operation of this Court s electronic filing system. Parties may access this filing through the Court s system. Dated: January 22, 2013 Respectfully submitted, /s/ Michel Paradis Counsel for Petitioner 13

21 USCA Case # Document # Filed: 01/22/2013 Page 21 of 54 ADDENDUM MG George B. Davis, A Treatise on the Military Law of the United States 53 (3d Ed., John Wiley & Sons 1915) (excerpts) Henry W. Halleck, International Law (D. Van Nostrand 1861) (excerpts) M. de Vattel, The Law of Nations 375, 400 n.179 (1758, ed. Joseph Chitty, T. & J.W. Johnson Co. 1867) (excerpts) William Winthrop, Military Law & Precedents 769 (2d ed., GPO 1920) (excerpts)

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