for the district of columbia circuit docket … [oral argument schedule d for october 22, 2014] for...
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11-1324 [Oral argument scheduled for October 22, 2014]
FOR THE DISTRICT OF COLUMBIA CIRCUIT Docket No. 11-1324
ALI HAMZA SULIMAN AHMAD AL BAHLUL,
v.
UNITED STATES,
Petitioner,
Respondent.
APPEAL FROM COURT OF MILITARY COMMISSION REVIEW (CMCR-09-001)
REPLY BRIEF OF PETITIONER
MAJ Todd E. Pierce, Michel Paradis JA, U.S. Army (Ret.) Mary R. McCormick Senior Fellow 1620 Defense Pentagon Univ. of Minnesota Washington, DC 20301-1620 Human Rights Center [email protected] Mondale Hall, N-120 TEL: 1.703.696-9490 x115 229-19th Avenue South FAX: 1.703.696-9575 Minneapolis, MN 55455 Counsel for Petitioner
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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
I. PARTIES AND AMICI APPEARING BELOW
The parties and amici who appeared before the Court of Military Commission Review in connection with this appeal were:
1. Ali Hamza Ahmad Suliman al Bahlul, Appellant
2. United States of America, Appellee
3. Amicus Curiae the Office of the Chief Defense Counsel, Col Peter Masciola, USAF (on brief)
4. Amicus Curiae Robert David Steele and Others in the United States Intelligence Community, McKenzie Livingston (on brief)
5. Amicus Curiae Historians, Political Scientists and Constitutional Law Professors, Sarah Paoletti (on brief)
6. Amicus Curiae National Institute of Military Justice, Michelle Lindo (on brief)
7. Amicus Curiae Montana Pardon Project, Jeffrey Renz (on brief)
8. Amicus Curiae Human Rights Committee of the American Branch of�the International Law Association, Jordan J. Paust (on brief)
II. PARTIES AND AMICI APPEARING IN THIS COURT
1. Ali Hamza Ahmad Suliman al Bahlul, Petitioner
2. United States of America, Respondent
3. Amicus Curiae Int’l Law Scholars, David Weissbrodt (on brief)
4. Amicus Curiae Retired Military and Intelligence Officers, McKenzie Livingston (on brief)
5. Amicus Curiae The National Institute of Military Justice, Steve Vladeck (on brief)
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6. Amicus Curiae First Amendment Historians, Jeffrey Renz (on brief)
7. Amicus Curiae Historians, Political Scientists and Constitutional Law Professors, Sarah Paoletti (on brief)
8. Amicus Curiae David Glazier & Gary Solis, John Summers (on brief)
9. Amicus Curiae Constitutional Accountability Center, Elizabeth Wydra (on brief)
10. Amicus Curiae Former Government Officials, Military Lawyers & Scholars, Peter Marguiles (on brief)
11. Amicus Curiae Washington Legal Foundation, Richard Samp (on brief)
III. RULINGS UNDER REVIEW
This appeal is from a decision of the United States Court of Military Commission Review in United States v. Ali Hamza Ahmad Suliman al Bahlul, CMCR 09-001(en banc September 9, 2011). The decision is reported at 820 F.Supp.2d 1141 (C.M.C.R. 2011).
IV. RELATED CASES
This case has not previously been filed with this court or any other court. Counsel are aware of no other cases that meet this Court’s definition of related.
Dated: October 6, 2014 By: /s/ Michel Paradis
Counsel for Petitioner
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TABLE OF CONTENTS
Table of Authorities ............................................................................................... iv
Glossary of Terms ................................................................................................. vii
Summary of Argument ............................................................................................ 1
Argument .................................................................................................................. 3
I. The Government Forfeited Any Claim to Plain Error Review. ......................... 3
II. Congress Exceeded its Power Under the Define & Punish Clause by Attempting to Transform Conspiracy into a War Crime. .................................. 5
A.Subject-Matter Jurisdiction is Reviewed De Novo. ................................ 5
B.Congress’ Power to Codify War Crimes Derives Exclusively from the Define & Punish Clause. .......................................................... 7
C.Spying and Aiding the Enemy Support the Traditional Scope of Congress’ Power Under the Define & Punish Clause. ............................ 9
D.Conspiracy is Unprecedented as a Stand-Alone War Crime. ............... 13
E.The Government’s Alternative Reliance on the Necessary & Proper Clause is also Contrary to Settled Law. ..................................... 18
III. Conspiracy is a Domestic-Law Crime Triable Only in the Courts of Law. .... 19
A.Compliance with the Jurisdictional Limits Imposed by Article III is Reviewed De Novo. ........................................................................... 19
B.Conspiracy is Triable Only by the Courts of Law. ............................... 21
IV. The Government Cannot Put Thoughts, Beliefs, and Ideals on Trial. ............. 25
A.Abridgments of the First Amendment are Reviewed De Novo. ........... 25
B.The Government Cannot Disregard the First Amendment when it Prosecutes the Production of a Film. ..................................................... 26
V. Segregating the Criminal Justice System is Unconstitutional. ........................ 28
A.Discrimination Based on Nationality is Reviewed De Novo. ............... 28
B.De Jure Segregation is Subject to Strict-Scrutiny. ................................ 30
C.Under Any Standard, the De Jure Segregation Here was Invidious, Irrational, and Unconstitutional. .......................................... 32
Conclusion ............................................................................................................... 34
Certificate of Service .............................................................................................. 36
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TABLE OF AUTHORITIES
Petitioner places primary reliance on authorities marked with an *
Cases
Baskin v. Bogan, 2014 WL 4359059 (7th Cir. 2014) ................................... 30, 33
Bond v. United States, 131 S.Ct. 2355 (2011) ..................................................... 27
Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) ....................................... 25
*Callan v. Wilson, 127 U.S. 540 (1888) ....................................................... 23, 24
CFTC v. Schor, 478 U.S. 833 (1986) .................................................................... 19
Chan Gun v. United States, 9 App. D.C. 290 (D.C. Cir. 1896) ........................... 30
Citizens United v. FEC, 558 U.S. 310 (2010) ..................................................... 26
Colepaugh v. Looney, 235 F.2d 429 (10th Cir.1956) .......................................... 14
Comm. v. Kingsbury, 5 Mass. 106 (Mass. 1809) ................................................. 16
Curtis Pub. v. Butts, 388 U.S. 130 (1967) ........................................................... 25
DKT Mem’l Fund v. U.S.A.I.D., 887 F.2d 275 (D.C. Cir.1989) .......................... 27
Eisenstadt v. Baird, 405 U.S. 438 (1972) ............................................................ 27
Ex parte Milligan, 4 Wall. 2 (1866) ............................................................... 7, 23
*Ex parte Quirin, 317 U.S. 1 (1942) ................ 1, 8, 10, 13, 14, 15, 21, 22, 23, 24
Ex parte Siebold, 100 U.S. 371 (1879) .................................................................. 5
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ................................. 26
Freytag v. C.I.R., 501 U.S. 868 (1991) ................................................................ 20
Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ...................................................... 20
Griffin v. Illinois, 351 U.S. 12 (1956) .................................................................. 33
*Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ................................ 7, 15, 18, 20, 24
Hamdan v. United States, 696 F.3d 1238 (2012) .................................................. 8
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................................................ 13
Iannelli v. United States, 420 U.S. 770 (1975) .................................................... 16
In re Heff, 197 U.S. 488 (1905) ............................................................................. 5
In re Yamashita, 327 U.S. 1 (1946) ....................................................................... 8
Kuretski v. C.I.R., 755 F.3d 929 (D.C. Cir. 2014) ............................................... 20
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McLaughlin v. Florida, 379 U.S. 184 (1964) ...................................................... 33
Northern Pipeline v. Marathon Pipeline, 458 U.S. 50 (1982) ............................ 25
O’Callahan v. Parker, 395 U.S. 258 (1969) .......................................................... 6
Palmore v. United States, 411 U.S. 389 (1973) .................................................. 24
Patton v. United States, 281 U.S. 276 (1930) ...................................................... 19
Peyton v. Rowe, 391 U.S. 54 (1968) .................................................................... 21
Plessy v. Ferguson, 163 U.S. 537 (1896) ............................................................ 31
Plyler v. Doe, 457 U.S. 202 (1982) ..................................................................... 30
Quercia v. United States, 289 U.S. 466 (1933) ................................................... 28
Reid v. Covert, 354 U.S. 1 (1957) ........................................................................ 20
Snyder v. Phelps, 131 S.Ct. 1207 (2011) ............................................................. 28
Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014) ..............................................3, 4
*Toth v. Quarles, 305 U.S. 11 (1955) ..................................................... 18, 20, 24
United States v. Bahlul, 2014 WL 3437485 (2014) ............................. 3, 8, 12, 17
United States v. Baucum, 80 F.3d 539 (D.C. Cir. 1996) ....................................... 5
United States v. Broce, 488 U.S. 563 (1989) ......................................................... 5
United States v. Cotton, 535 U.S. 625 (2002) ................................................ 6, 21
United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004) ..................4, 5
United States v. Garcia, 5 C.M.A. 88 (C.M.A. 1954) ......................................... 28
United States v. Melanson, 53 M.J. 1 (C.A.A.F. 2000) ....................................... 28
United States v. Nueci-Pená, 711 F.3d 191 (1st Cir. 2013) .................................. 5
United States v. Prado, 743 F.3d 248 (7th Cir. 2014) ........................................... 4
United States v. Rahman, 189 F.3d 88 (2d Cir. 1998) ......................................... 27
United States v. Robel, 389 U.S. 258 (1967) ......................................................... 2
United States v. Saac, 632 F.3d 1203 (11th Cir. 2011) ......................................... 6
United States v. Sheehan, 512 F.3d 621 (D.C. Cir. 2008) ...................................... 29
United States v. Workcuff, 422 F.2d 700 (D.C. Cir. 1970) .................................. 29
Waldman v. Stone, 698 F.3d 910 (6th Cir. 2012) ................................................ 20
*Wong Wing v. United States, 163 U.S. 228 (1896) ........................................... 31
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Statutes
12 Stat. 340 (1862) ............................................................................................... 31
14 Stat. 471 (1867) ............................................................................................... 17
2 Stat. 359 (1806). ................................................................................................ 31
27 Stat. 25 (1892) ................................................................................................. 31
Journals of the Continental Congress, 1774-1789 (GPO 1904) .................... 9, 11
Executive Branch Materials
DoD Directive 2310.01E (Aug. 19, 2014) ............................................................. 8
Ex parte Quirin, Case Nos. 1-7, Brief for Respondents (Jul. 29, 1942).............. 14
Manual for Courts-Martial .................................................................................... 6
Military Commissions, 11 Op. Att’y Gen. 297 (1865) ................................. 11, 16
Rules for Military Commissions ............................................................................ 6
Miscellaneous
Cheney Hyde, Aspects of the Saboteur Cases, 37 Am.J.Int’l L. 81 (1943) ........ 10
Digest of the Opinions of the Judge Advocates General (1912) ......................... 14
George Davis, Outlines of International Law (1887) .......................................... 11
Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat. 2277 .................................... 11
Harry Edwards & Linda Elliot, Federal Courts – Standards of Review (West 2007) ............................................................................................... 25
Henry Halleck, International Law (1908) ........................................................... 11
James Madison, The Resolution of Virginia in Opposition to the Alien and Sedition Laws (1798) ................................................................................. 25
Lassa Oppenheim, International Law (1921) ......................................... 11, 12, 15
M. de Vattel, The Law of Nations (1758) ..................................................... 11, 12
Richard Baxter, So-Called ‘Unprivileged Belligerency’; Spies, Guerrillas, and Saboteurs, 28 Brit.Y.B.Int’l L. 323 (1951) ........................................ 10
United States v. Surratt, Case No. 4731 (D.C.Sup.Ct., Feb. 4, 1867) ................. 17
William Winthrop, Military Law & Precedents (1920) ............... 7, 11, 15, 18, 31
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GLOSSARY OF TERMS
2006 Act ......................... Military Commissions Act of 2006, 120 Stat. 2600 (2006) App. ........................................................ Petitioner’s Appendix, dated Aug. 13, 2014 Bahlul .......... United States v. Bahlul, 2014 WL 3437485 (D.C. Cir. 2014) (en banc)
Baskin ....................................... Baskin v. Bogan, 2014 WL 4359059 (7th Cir. 2014)
CMCR ................................................... U.S. Court of Military Commission Review
Halleck ...................................................... Henry Halleck, International Law (1878)
Oppenheim ........................................... Lassa Oppenheim, International Law (1906)
Resp. ........................................................ Brief for Respondent, dated Sept. 18, 2014
R.M.C. …………………….U.S. Dep’t of Def., Manual for Military Commissions, Part 2, Rules for Military Commissions (2012) Supp.App. ...........................Petitioner’s Supplemental Appendix, dated Oct. 6, 2014 Vattel .......................................................... M. de Vattel, The Law of Nations (1758) Winthrop .............................. William Winthrop, Military Law & Precedents (1920)
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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
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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.
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ARGUMENT
I. THE GOVERNMENT FORFEITED ANY CLAIM TO PLAIN ERROR REVIEW.
The government’s arguments depend on persuading this Court to review the
remaining issues in this case only for plain error. It contends this is warranted by
Bahlul’s alleged forfeiture of these issues at trial. There are specific reasons why
plain error is both inapplicable and inappropriate to each of the questions now
under review. But there is an overarching reason as well: the government’s
“arguments come too late.” Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014).
The government waited many years, multiple rounds of briefing, and two
oral arguments before invoking forfeiture or asking for plain error review. In its
initial briefing before the CMCR, the government’s only procedural objection was
that Bahlul’s appointed military lawyer purportedly waived his ex post facto, free
speech, equal protection, and bill of attainder objections.1 Supp.App. 134.
As this Court has held, “waiver and forfeiture are not the same[.]” United
States v. Bahlul, 2014 WL 3437485 at *4 n.6 (D.C. Cir. 2014) (en banc) (“Bahlul”).
1 While the government no longer argues for waiver, this omnibus waiver was done in Bahlul’s absence and before he was notified that his pro se status had been revoked. This lawyer never formed an attorney-client relationship with Bahlul and Bahlul repeatedly rejected this lawyer. The CMCR accordingly declined to accept this lawyer’s assertion of waiver as preclusive of its review and, instead, reached all of the issues presented to it de novo. United States v. Bahlul, 820 F.Supp.2d 1141, 1258 (CMCR 2011).
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Over the two years Bahlul’s appeal was pending below, the government never
asserted trial-level forfeiture or sought plain error review on any issue. “By failing
to argue forfeiture or a failure to properly plead the claims before the [CMCR], the
[government] has—in a word—forfeited [its] forfeiture argument here.” Solomon,
763 F.3d at 13; see also United States v. Prado, 743 F.3d 248, 252 (7th Cir. 2014)
(“[W]here the government fails to assert that an argument was forfeited and fails to
identify the standard of review appropriate for such a forfeiture, the issue is treated
as if the objection were raised below and the standard of review appropriate to
such an issue controls.”).
Even if this Court is willing to liberally construe the government’s assertion
of waiver below, it waived any waiver argument it might have made on the first
two issues now before this Court. Before the CMCR, Bahlul argued that “none of
the charges are war crimes triable by military commission” because they are
Article I tribunals, whose jurisdiction is constitutionally limited to war crimes, and
Congress’ power to proscribe war crimes is limited by the Define & Punish Clause.
Supp.App. 126-30. The government stipulated that this challenge to the charges
“alleges a ground for relief that has not been waived.” Supp.App. 134. The
government has “thus waived its waiver argument on that point.” United States v.
Delgado-Garcia, 374 F.3d 1337, 1340 (D.C. Cir. 2004).
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II. CONGRESS EXCEEDED ITS POWER UNDER THE DEFINE & PUNISH CLAUSE BY ATTEMPTING TO TRANSFORM CONSPIRACY INTO A WAR CRIME.
A. Subject-Matter Jurisdiction is Reviewed De Novo.
As noted above, the government stipulated that Bahlul’s argument under the
Define & Punish Clause should be reviewed de novo. It nevertheless now contends
that under United States v. Baucum, 80 F.3d 539 (D.C. Cir. 1996), objections that
turn on Congress’ legislative power are not jurisdictional and therefore forfeitable.
Resp. 26. The statute in Baucum, however, was about sentencing and did “not
involve the power of the government ‘to hale into court.’” Id. at 543. This case, by
contrast, presents “a claim that – judged on its face – [alleges that] the charge is
one which the State may not constitutionally prosecute.” United States v. Broce,
488 U.S. 563, 575 (1989) (quotations omitted; original emphasis); Delgado-Garcia,
374 F.3d at 1343 (same); see also In re Heff, 197 U.S. 488, 505-06 (1905)
(challenges to Congress’ power to enact crimes are jurisdictional); Ex parte
Siebold, 100 U.S. 371, 376-77 (1879) (“An offence created by [the statute] is not a
crime. A conviction under it is not merely erroneous, but is illegal and void, and
cannot be a legal cause of imprisonment.”).
The government asks for a different rule based on the First Circuit’s decision
in United States v. Nueci-Pená, 711 F.3d 191 (1st Cir. 2013). Resp. 26. As an
initial matter, Nueci-Pená split with the Eleventh Circuit, which held that
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challenges under the Define & Punish Clause are jurisdictional. United States v.
Saac, 632 F.3d 1203, 1208 (11th Cir. 2011). But even assuming Nueci-Pená was
correctly decided, the issue here is not just whether Congress can create a crime,
but whether it can create an Article I tribunal in which to prosecute it.
The legal sufficiency of the charges in such a case goes directly to whether
the tribunal itself is lawfully constituted, which is well established in military law
as an objection that may be raised at any time. Rules for Military Commissions 905
& 907; Manual for Courts-Martial, App. 21 ¶ 68(b)(3) (2012) (“failure to allege an
offense” is an objection “to the failure of a specification to allege any offense
triable by court-martial” or that the charge is not “an offense of which a court-
martial may take cognizance.”). The starkest example of this is O’Callahan v.
Parker, 395 U.S. 258 (1969) overruled by Solorio v. United States, 483 U.S. 435
(1987), which held that courts-martial cannot constitutionally try service-members
for non-service-connected offenses. O’Callahan was decided on habeas, despite
the fact that the petitioner failed to raise this challenge at trial or on direct appeal
twelve years earlier. Quirin, Yamashita, and Hamdan were also habeas challenges
to a military tribunal’s lack of “power to adjudicate the case.” United States v.
Cotton, 535 U.S. 625, 630 (2002) . This Court’s review of that same challenge on
direct review here is, therefore, de novo.
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B. Congress’ Power to Codify War Crimes Derives Exclusively from the Define & Punish Clause.
The government’s principle claim is that Congress could have looked
beyond the Define & Punish Clause to the war powers more generally as its source
of legislative authority. If that were true, Congress’ power to create and divert
purely domestic crimes for trial by military tribunal would be its only legislative
power to have no limit. Unsurprisingly, no good legal authority supports it.
The government tries to obscure this fact with selective editing. Its primary
citation is Winthrop’s reference to the war powers “[i]n general” as the “original
sanction” for military commissions. Resp. 26-27. The government truncates this
quote to eliminate Winthrop’s immediately preceding sentence, which states that
when Congress “enacted that spies and guerillas should be punishable by sentence
of military commission, such commission may be regarded as deriving its authority
from [the Define & Punish Clause].” William Winthrop, Military Law &
Precedents 831 (1920), App. 41.
Such references to the war powers as the “original sanction” for military
commissions merely describe a threshold condition for the military’s authority to
try non-service members at all. Military commissions are tribunals of “military
necessity.” Hamdan v. Rumsfeld, 548 U.S. 557, 590 (2006). The activation of the
war powers simply marks this threshold because “[a]s necessity creates the rule, so
it limits its duration.” Ex parte Milligan, 4 Wall. 2, 127 (1866). When all of the
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relevant legal authorities move from this threshold condition to the specific
question of a law-of-war military commission’s subject-matter jurisdiction, they
uniformly treat it, solely and exclusively, as answered by the scope of the Define &
Punish Clause. Quirin, 317 U.S. at 28; In re Yamashita, 327 U.S. 1, 7 (1946).
The government strains to avoid this in various ways that all reduce to its
continued demand that this Court redefine the “law of war” as a species of
domestic law. The overwhelming body of authority against this argument is set out
in our opening brief, Pet.Br. 17-19, Judge Rogers’ separate en banc opinion,
Bahlul, at *27, as well as the panel decision in Hamdan v. United States, 696 F.3d
1238, 1248-49 & n. 9 (2012). One important authority to add is the Department of
Defense’s new directive on detainee operations, which was issued after Bahlul’s
original brief was filed. DoD Directive 2310.01E (Aug. 19, 2014), Supp.App. 111-
124. Its glossary defines the “law of war” as:
The part of international law that regulates the conduct of hostilities and the protection of victims of armed conflict in both international and non-international armed conflict and occupation, and that prescribed the rights and duties of neutral, non-belligerent and belligerent states. It is often called the “law of armed conflict” or “international humanitarian law,” and is specifically intended to address the circumstances of armed conflict. It encompasses all international law applicable to the conduct of military operations in armed conflicts that is binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party (e.g., the Geneva Conventions of 1949), and applicable customary international law.
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Id. at 14, Supp.App. 124. The government does not mention this in its response,
nor has it explained why the law of war should mean something so fundamentally
different in the context of law-of-war prosecutions than it does in every other
circumstance where it is necessary to “comply with the law of war with respect to
the treatment of all detainees.” Id. at 2, Supp.App. 112.
C. Spying and Aiding the Enemy Support the Traditional Scope of Congress’ Power Under the Define & Punish Clause.
In arguing for its redefinition of the law of war, the government puts its
heaviest reliance on the historic use of military tribunals to try spying and aiding
the enemy offenses. The government contends, repeatedly, that “spying and aiding
the enemy … have never been international law of war offenses.” Resp. 20
(emphasis added). From this, it reasons that Congress’ power to proscribe law-of-
war offenses cannot spring solely from the Define & Punish Clause and, therefore,
must be drawn from the broad penumbra of the war powers.
The first problem with this argument is that it proves too much. Spying and
aiding the enemy stand apart as the two – and only two – categories of offenses
that Congress has made both generally applicable and triable by the military since
the Founding. Whatever their status under international law, they have had this sui
generis status in U.S. law since 1776. Journals of the Continental Congress, 1774-
1789, 1:111-23, 1:450 (GPO 1904) (enacting the first statutes on aiding the enemy
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and spying respectively); Supp.App. 49-50. No one, until the government in this
case, has ever suggested that they sit atop a domestic law of war iceberg.
The government’s greater error, however, is in its characterization of the
historical status of spying and aiding the enemy under international law, which is
irreconcilable with Quirin’s holding that “[a]uthorities on International Law have
regarded [spies] as war criminals.” Quirin, 317 U.S. at 35 n.12; see also Cheney
Hyde, Aspects of the Saboteur Cases, 37 Am.J.Int’l L. 81, 90 (1943) (recognizing
that Quirin “imputes to the law of nations (or to the law of war as a part thereof)
the injunction against the act of spying.”).
The government supports its argument that these offenses were “never”
recognized in international law with a journal article written in 1951. Resp. 31
(citing Richard Baxter, So-Called ‘Unprivileged Belligerency’; Spies, Guerrillas,
and Saboteurs, 28 Brit.Y.B.Int’l L. 323 (1951)). This article reflects, indeed
crystalized, the post-war evolution in thinking about war criminality away from the
law of war’s historic regulation of “fair play” and gentlemanly duty toward its
contemporary focus on humanitarian conduct. This article even criticizes Quirin’s
holding that spies are “offenders against the laws of war” as lacking “support in
contemporary doctrine regarding such activities in wartime.” Id. at 330.
Regardless of this article’s scholarly merits, Quirin is the authoritative law
in this case. And regardless of whether spying’s status changed after the Second
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World War, Quirin had a wealth of precedent and international legal authority
behind it in 1942. Lassa Oppenheim, International Law 2:223 (1921)
(“Oppenheim”) (“persons committing acts of espionage or war treason are – as will
be shown below – considered war criminals and may be punished[.]”), Supp.App.
53; Henry Halleck, International Law 1:628-29 (1908) (“Halleck”) (“The act of
spying is an offence against the laws of war alone; it is no crime in time of peace”),
Supp.App. 36-37; George Davis, Outlines of International Law 241 (1887)
(including spying within the “Crimes and Offences against the Laws of War” and a
“crime[] at International Law[.]”), Supp.App. 13-14; Winthrop, at 770 (“By the
law of nations the crime of a spy is punishable with death.”), Supp.App. 89; M. de
Vattel, The Law of Nations 375 (1758) (describing spying as a form of treachery),
Supp.App. 5; Military Commissions, 11 Op. Att’y Gen. 297, 312 (1865)
(“Infractions of the laws of nations are not denominated crimes, but offenses. …
[Acting as] a spy is an offense against the laws of war”); Hague Convention (IV)
Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907,
36 Stat. 2277, arts. 29-31 (regulating the punishment of spies). In fact, the very
first spying statute, passed in 1776, stated that spies should “suffer death according
to the law and usage of nations.” Supp.App. 49-50.
Historical international law scholarship also treated what is now called
“aiding the enemy” as a law-of-war offense, such that “war treason is a
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comprehensive term for a number of acts hostile to the belligerent within whose
lines they are committed.” Oppenheim, at 2:226, Supp.App. 56; see also Halleck,
at 2:64 (discussing the punishment of “war traitors”), Supp.App 43. As this Court
noted, Bahlul, at *19, the offense of aiding the enemy derives from the rule of non-
intercourse, which was “the rule of international jurisprudence, which forbids all
intercourse and trade with the public enemy[.]” Halleck, at 2:156, Supp.App 47;
see also Vattel, at 400 n.179 (discussing the prohibition on intercourse between
enemies), Supp.App 5.
The government’s error is that it is applying modern international legal
theory anachronistically. Indeed, if spying and aiding the enemy were “never”
offenses under international law, there is no explanation for why they have been
given so much attention in so many international law treatises, written over many
centuries in many languages by scholars from many legal systems.
Modern developments in the law of war only “retrospectively cast doubt on
the constitutional validity of the most prominent military commission precedents in
our nation’s history,” Resp. 52, if one insists on this anachronism. If anything, it is
the government who needs to cast doubt on precedent, since their entire argument
depends on Quirin being wrongly decided in either one of two ways. Either the
Court was wrong when it held that law-of-war military commissions’ subject-
matter jurisdiction is limited to offenses “accepted as valid by authorities on
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international law … as a rule or principle of the law of war.” Quirin, 317 U.S. at
36-37. Or it was wrong when it decided that spying met that standard.
Even if this Court could ignore Quirin, it has been given no good reason to
do so. While perhaps not the “Court’s finest hour,” Hamdi v. Rumsfeld, 542 U.S.
507, 569 (2004) (Scalia, J., dissenting), Quirin articulated a clear rule. By tying
Congress’ proscriptive power to the Define & Punish Clause, the Court not only
respected tradition, it ensured that customary international law would define
judicially manageable limits on the government’s ability to circumvent the courts.
The only limiting principle the government offers to replace Quirin is its own
willingness to invoke the war powers when prosecuting a crime that it wishes to
exempt from the rigors of a judicial trial. Given modern realities, that dangerous
principle provides no limit at all.
D. Conspiracy is Unprecedented as a Stand-Alone War Crime.
The government attempts to claim precedent in the military trials of the Nazi
Saboteurs, the Lincoln Assassins, and Ledger Grenfel. None of these supports its
effort to try the inchoate, extraterritorial conspiracy offense it brought here.
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The Nazi Saboteurs. The government’s reliance on Quirin and Colepaugh v.
Looney, 235 F.2d 429, 433 (10th Cir.1956),2 is wholly superficial. In Quirin, the
Court held that it only had to find jurisdiction over one offense in order to defeat
the saboteurs’ collateral attack on habeas. Quirin, 317 U.S. at 46. After finding that
the charge of sabotage “plainly allege[d] a violation of the law of war,” id. at 36., it
did not matter what the remaining charges were.
The government itself mounted only a nominal defense of the conspiracy
charge. In its briefing, it provided a six-page, single-spaced appendix presenting its
arguments in support of the four charges at issue. Ex parte Quirin, Case Nos. 1-7,
Brief for Respondents, at 78-83 (Jul. 29, 1942); Supp.App. 104-110. Conspiracy is
relegated to the bottom of the last page, where the government offers two citations
and no substantive argument. Id. at 83, Supp.App. 110.
The first citation is to the Digest of the Opinions of the Judge Advocates
General 1071 (1912); Supp.App. 1-3. In its list of “offences against the laws and
usages of war,” the only conspiracy-type offense is “[c]onspiracy by two or more
to violate the laws of war by destroying life or property in aid of the enemy.” Id.
2 The government’s archival memorandum from then-Assistant Attorney General Clark does not add weight to this precedent. Clark filed this memorandum in his capacity as the prosecuting attorney in the Colepaugh case. David Glazier, The Misuse of History, 66 Baylor L. Rev. 295, 326-27 (2014). The only view of the Executive Branch it reflects, therefore, is a prosecutor’s litigation position.
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(emphasis added). Like most of the others listed, this offense was a type of aiding
the enemy or “war treason,” which, like spying, applies only to hostile acts done
within the lines. Oppenheim, at 268-69; Supp.App. 63; Quirin, 317 U.S. at 23.
The second citation, discussed below, was the trial of the Lincoln Assassins.
Tellingly, the government cited this commission as only analogous authority, using
the “cf.” signal. In 1942, the need for this “cf.” signal would have been plain and
demonstrates why the government cannot rely on this case to establish
conspiracy’s status as a stand-alone war crime in 2014.
The Lincoln Assassins. As a threshold matter, the Lincoln Assassin trial
was not a pure law-of-war military commission. The District of Columbia, where
the offense and trial occurred, was under martial law and Winthrop cites this as an
example of a “hybrid” commission. Winthrop, at 839, n.5; Pet.Br. 13-14.
Even if it was a pure law-of-war military commission, the specifications
make clear that none of the defendants was tried for the stand-alone offense of
conspiracy. In the Nineteenth Century, it was common for the charge to state
general allegations and for the specification to state the substantive elements of the
offense. Winthrop, at 842; see Hamdan, 548 U.S. at 609 (plurality op.). In this
respect, the “charge” was more a statement of the case than a legally operative
averment of the accused’s criminality. The specifications against the Lincoln
assassins all alleged that they “aid[ed], abet[ted], and assist[ed] the said John
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Wilkes Booth in the killing and murder of said Abraham Lincoln.” Supp.App. 90.
Some are also charged with “attempt[ing] to kill and murder” the Secretary of State
and “[lying] in wait for Andrew Johnson[.]” Supp.App. 77-78.
Under Nineteenth Century criminal law, there was a good reason not to
charge the assassins with the stand-alone offense of conspiracy. While now
forgotten, this was “a time when the contours of the law of conspiracy were in the
process of active formulation.” Iannelli v. United States, 420 U.S. 770, 781 (1975).
As a stand-alone offense, common law conspiracy was a misdemeanor that carried
a maximum two-year sentence. Id. Charging a conspiracy to commit a completed
felony meant that the defendant was charged, not with conspiring, but with the
joint perpetration of the underlying crime. Id. In fact, “an indictment that charged
conspiracy in terms indicating that the felony actually had been committed was
considered invalid.” Id. at 781, n.13; see also Comm. v. Kingsbury, 5 Mass. 106,
108 (Mass. 1809) (“a contrivance to commit a felony, and executing the
contrivance, cannot be punished as an offence distinct from the felony[.]”).
This is why Attorney General Speed does not even mention the word
“conspiracy” in his review of the Lincoln Assassins’ trial. Instead, he poses the
question presented as, “whether the persons charged with the offence of having
assassinated the President can be tried before a military tribunal, or must they be
tried before a civil court.” 11 Op. Att’y Gen. at 297 (emphasis added).
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This is also why the identical language of “combine, confederate, and
conspire and agree together feloniously to kill and murder one Abraham Lincoln”
was not understood as alleging a stand-alone conspiracy offense when used in the
indictment against John Surratt, a member of the plot who was tried in federal
court in 1867. United States v. Surratt, Case No. 4731 (D.C.Sup.Ct., Feb. 4, 1867);
Supp.App. 100. Indeed, it could not have been. The federal conspiracy statute was
enacted a month after Surratt was indicted. 14 Stat. 471 § 30 (1867).
No one at the time the Lincoln’s assassins were charged, either before the
military commission or by the grand jury, would have understood the general
allegation that they “conspired” to allege the stand-alone misdemeanor of
conspiracy. If nothing else, it would have seemed absurdly lenient. Viewing the
allegations in these cases as alleging a stand-alone charge of conspiracy, as we
know it today, is simply a misreading of Nineteenth Century law.
Grenfel. The government’s last resort is the Grenfel trial, which is the only
example it cites of an ostensibly inchoate conspiracy being tried before a military
commission. Resp. 37. The problem with Grenfel is that it is precisely the kind of
“field order” that this Court rejected as too obscure and too unreliable to have any
relevance today. Bahlul, at *18. And, if one looks closely, the Grenfel case
illustrates this Court’s concerns perfectly.
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Like the Lincoln Assassins, this is another case that Winthrop describes as a
“hybrid” military commission. Winthrop, at 839, n.5; see also Hamdan, 548 U.S.
at 609 n.37 (plurality op.) (describing the charges as “hybrid crimes”). What is
more, the prosecution defended the commission’s jurisdiction over Grenfel and his
co-defendants by insisting that martial law applied in Chicago. H.Exec.Doc #50,
Supp.App. 66-74. The prosecution’s primary legal authority for this argument was
the “military commission which sat at Indianapolis” id. at 580, Supp.App. 74,
which was invalidated the following year in Ex parte Milligan.
E. The Government’s Alternative Reliance on the Necessary & Proper Clause is also Contrary to Settled Law.
Finally, the government suggests that the Necessary & Proper Clause can be
used as something of a “fudge-factor,” authorizing Congress to criminalize
offenses that are not, in fact, recognized under international law pursuant to its
power to “define and punish … Offenses against the Law of Nations.” The
Necessary & Proper Clause, however, does not grant Congress the power to reach
beyond the limits of its enumerated powers when legislating the jurisdiction of
military tribunals. The government made the identical argument in Toth v. Quarles,
305 U.S. 11 (1955), and the Supreme Court held that even its broad authority to
regulate the Armed Forces “does not empower Congress to deprive people of trials
under Bill of Rights safeguards, and we are not willing to hold that power to
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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
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929 (D.C. Cir. 2014)). These “structural constitutional objections” cannot be
forfeited because they invoke “the strong interest of the federal judiciary in
maintaining the constitutional plan of separation-of-powers.” Freytag v. C.I.R., 501
U.S. 868, 878-80 (1991); Glidden Co. v. Zdanok, 370 U.S. 530 (1962) (forfeiture
“is plainly insufficient to overcome the strong interest of the federal judiciary in
maintaining the constitutional plan of separation-of-powers.”); Waldman v. Stone,
698 F.3d 910, 918 (6th Cir. 2012) (“the structural principle advanced by Article III
… is not Waldman’s to waive.”).
These structural interests require especially close scrutiny in the context of
military tribunals, where the federal courts have a special duty to guard against the
military’s encroachment into the judicial power. Hamdan, 548 U.S. at 588
(recognizing the “duty which rests on the courts, in time of war as well as in time
of peace, to preserve unimpaired the constitutional safeguards of civil liberty[.]”);
Reid v. Covert, 354 U.S. 1, 21 (1957) (“every extension of military jurisdiction is
an encroachment on the jurisdiction of civil courts, and, more important, acts as a
deprivation of the right to jury trial and of other treasured constitutional
protections.”); Toth, 350 U.S. at 15 (same).
Finally, like the scope of Congress’ power under the Define & Punish
Clause, the Article III issue in this case squarely challenges the military
commission’s “constitutional power to adjudicate” a domestic-law crime that by
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long tradition and practice is within the exclusive jurisdiction of the courts of law.
Cotton, 535 U.S. at 630 (original emphasis). This objection to the particular
offenses charged is one of the handful of challenges to “jurisdiction,” Quirin, 317
U.S. at 46, that could be heard via habeas even before the scope of the writ
expanded after Peyton v. Rowe, 391 U.S. 54 (1968). Indeed, it is difficult to
imagine what else “jurisdiction” could mean in this context.
B. Conspiracy is Triable Only by the Courts of Law.
The parties agree that the Article III question in this case is decided by
Quirin. Resp. 52-54. The only dispute is over what Quirin held.
The most straightforward reading of Quirin is that law-of-war military
commissions are a narrow exception to the judicial trial requirements of Article III
that is rooted in the fact that “offenses against the law of nations” are ordinarily not
among the “class of offenses constitutionally triable only by a jury.” Quirin, 317
U.S. at 28-29. As Quirin explains, most offenses arising under that “branch of
international law” fall into a special class that did not entail a jury trial right at
common law and, as a result, need not entail one today. Id. at 29, 39-40.
The Court in Quirin was explicit about this, particularly for the historic
practice of trying “spies according to the law and usage of nations.” Quirin, 317
U.S. at 41 (quotations omitted). Whatever international law currency the ancient
offenses of spying and aiding the enemy have lost in contemporary scholarship,
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they stand apart for Article III purposes as the only offenses for which non-service
members could be tried by the military “since the founding of our Government.” Id.
The government attempts to bend Quirin to its purposes in two ways. Both
require this Court to repudiate, or at least ignore, the plain text of the Supreme
Court’s relevant decisions.
Its first argument is that law-of-war military commissions’ only
jurisdictional limit should be the “enemy combatant” status of the accused. Resp.
56-57. It claims that this is what distinguished Quirin from Milligan. Id. 57 n.10.
This argument, however, is irreconcilable with history and the Quirin opinion.
History reflects scores, if not hundreds, of civilians tried by law-of-war military
commissions for war crimes both before and after Quirin was decided. For
example, none of the Lincoln Assassins were combatants and the gunman was a
stage-actor. Quirin, for its part, was explicit that its only inquiry was whether one
of the offenses charged was an “offense[] against the law of war not triable by jury
at common law[.]” Quirin, 317 U.S. at 40. Indeed, the Court expressly
distinguished Milligan because the offenses charged in that case were “of that class
of offenses constitutionally triable only by a jury.” Id. at 29.
The government’s second argument is that the saboteurs in Quirin were
charged with a conspiracy offense without the Supreme Court’s express
disapproval. Resp. 35. While it is true that Quirin never explicitly held that stand-
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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
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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
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upon the same mis-citation to Palmore, when it held that “where Article III does
apply, all of the legislative powers specified in Article I and elsewhere are subject
to it.” Northern Pipeline v. Marathon Pipeline, 458 U.S. 50, 73 (1982). The
alternative, the Court opined, “provides no limiting principle” and invites Congress
to “effectively eviscerate the constitutional guarantee of an independent Judicial
Branch of the Federal Government.” Id. at 74.
IV. THE GOVERNMENT CANNOT PUT THOUGHTS, BELIEFS, AND IDEALS ON TRIAL.
A. Abridgments of the First Amendment are Reviewed De Novo.
In asking for plain error review of the First Amendment issues in this case,
the government asks this Court to ignore both the Supreme Court and the record of
trial. It is well established that First Amendment issues present a special case on
appellate review. Harry Edwards & Linda Elliot, Federal Courts – Standards of
Review 3-4 (West 2007), App. 28-31. As “the only effectual guardian of every
other right” in a free society, James Madison, The Resolution of Virginia in
Opposition to the Alien and Sedition Laws (1798) , the courts have a sui sponte
obligation to protect the freedom of speech when the conduct of a trial threatens to
do the work of the censor. Bose Corp. v. Consumers Union, 466 U.S. 485, 499
(1984); see also Curtis Pub. v. Butts, 388 U.S. 130, 145 (1967) .
Moreover, Bahlul repeatedly asserted his status as a “media man” and
invoked the “freedom of the press.” App. 160. The government built its case
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around Bahlul’s status as a “propagandist” and, most damningly, implored the
military commission to punish him with life imprisonment for making a “political
argument.” App. 198. If there were ever a case that cried out for sui sponte
intervention from a presiding judge, it was this case, where the government put a
film on trial because it “contain[ed] the thoughts, the beliefs, the ideals of the
accused.” App. 209.
B. The Government Cannot Disregard the First Amendment when it Prosecutes the Production of a Film.
The government’s primary claim is that it was under no obligation to respect
the freedom of speech in the course of this prosecution because Bahlul had no First
Amendment rights in Afghanistan. This cramped view of freedom of speech is
anathema to the interests the First Amendment aims to protect, which “go[] beyond
protection of the press and the self-expression of individuals to prohibit
government from limiting the stock of information from which members of the
public may draw.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978).
When the government uses the criminal law to punish an individual for the ideas
he expresses, it uses the courts “to command where [another] person may get his or
her information or what distrusted source he or she may not hear, it uses censorship
to control thought. This is unlawful. The First Amendment confirms the freedom to
think for ourselves.” Citizens United v. FEC, 558 U.S. 310, 356 (2010).
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Regardless, therefore, of any personal right Bahlul could theoretically assert
as a civil plaintiff, he can assert the freedoms of speech and press are violated in
the course of his criminal prosecution. “[T]his is so even where the constitutional
provision that would render the conviction void is directed at protecting a party not
before the Court.” Bond v. United States, 131 S.Ct. 2355, 2367 (2011); see also
Eisenstadt v. Baird, 405 U.S. 438, 445 n.5 (1972); cf. DKT Mem’l Fund v.
U.S.A.I.D., 887 F.2d 275, 285 (D.C. Cir.1989) (distinguishing a non-citizen’s
standing to sue under the First Amendment with a non-citizen’s right to assert
defenses at trial).
Alternatively, the government asks this Court to ignore the conduct of its
prosecution and instead focus on the handful of overt acts alleged, which would be
punishable irrespective of the First Amendment. It cites, in support, cases such as
United States v. Rahman, 189 F.3d 88 (2d Cir. 1998), where defendants were
convicted for terrorism-related offenses despite their political motives. But what
the government fails to disclose is that in all of those cases, the trial judge did what
the military judge failed to do here: instruct the members that the accused’s
political beliefs were not on trial. Id. at 118 (“Judge Mukasey properly …
instructed that a defendant could not be convicted on the basis of his beliefs or the
expression of them – even if those beliefs favored violence.”).
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The prosecution set out “to impose liability on the basis of the jurors’ tastes
or views, or perhaps on the basis of their dislike of a particular expression.” Snyder
v. Phelps, 131 S.Ct. 1207, 1291 (2011). The military judge, under longstanding
military law, had an independent obligation to control the conduct of trial and
instruct on any issue raised by the evidence. Even in a federal trial, where issues of
rank and organizational loyalty are absent, “the judge is not a mere moderator, but
is the governor of the trial for the purpose of assuring its proper conduct and of
determining questions of law.” Quercia v. United States, 289 U.S. 466, 469 (1933).
That was not done. The judgment below should therefore be reversed.
V. SEGREGATING THE CRIMINAL JUSTICE SYSTEM IS UNCONSTITUTIONAL.
A. Discrimination Based on Nationality is Reviewed De Novo.
As a threshold matter, forfeiture and plain error are inapplicable to a military
tribunal’s personal jurisdiction. Under longstanding military law, constitutional or
statutory defects in a military tribunal’s “jurisdiction over the person, as well as
jurisdiction over the subject matter, may not be the subject of waiver.” United
States v. Garcia, 5 C.M.A. 88, 94 (C.M.A. 1954); see also United States v.
Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000) (“When an accused contests personal
jurisdiction on appeal, we review that question of law de novo[.]”).
Even assuming personal jurisdiction can be forfeited, Bahlul raised the
precise objection below that he now raises to the military commissions’
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discrimination on the basis of nationality. As noted in our opening brief, Bahlul’s
justified his so-called “boycott” with nine written objections, what he referred to as
his “nine political and legal reasons.” App. 152; Pet.Br. 2-3. Objection #7 contests
the military commissions’ “racial discrimination based on nationality.” App. 114.
While Bahlul’s pro se arguments may be “less detailed” than those this Court
might expect from a lawyer, his written objection to the military commission’s
discrimination based on nationality unambiguously asserted “the arguments
advanced on appeal.” United States v. Sheehan, 512 F.3d 621, 627 (D.C. Cir. 2008).
Furthermore, any doubts about the adequacy Bahlul’s written objections
must be resolved against the government. It alone was the custodian of his legal
papers and, as it stipulated at trial, it lost the only copy of his written objections.
App. 150. In their place, a portion of the transcript from Bahlul’s 2006 trial was
entered into the record, in which he discusses these objections with the military
judge. The quality of translation is extremely poor and, inexplicably, the transcript
omits any reference to his fourth objection. App. 112-13. This incomplete and
corrupted fragment of transcript has rendered any effort to ascertain the precision
of his objections “an exercise in creative imagination.” United States v. Workcuff,
422 F.2d 700, 702 (D.C. Cir. 1970). This Court therefore reviews the
commission’s discrimination based on nationality de novo.
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B. De Jure Segregation is Subject to Strict-Scrutiny.
The government offers no good legal authority or reason for why strict-
scrutiny should not apply in this case. Even “aliens whose presence in this country
is unlawful” are protected “from invidious discrimination by the Federal
Government.” Plyler v. Doe, 457 U.S. 202, 210 (1982). “Discrimination by a state
or the federal government against a minority, when based on an immutable
characteristic of the members of that minority … makes the discriminatory law or
policy constitutionally suspect.” Baskin v. Bogan, 2014 WL 4359059 at *1 (7th
Cir. 2014) (Posner, J.) (“Baskin”).
Undoubtedly, Congress enjoys wide latitude when legislating in areas of
immigration or political privileges. An individual’s citizenship in such situations is
not only relevant, but often the very subject of regulation. Equal justice under law,
however, is not a political privilege and its discriminatory denial is subject to the
strictest judicial scrutiny. See Chan Gun v. United States, 9 App.D.C. 290, 298
(D.C. Cir. 1896) (“[When] the enactment goes beyond arrest and necessary
detention … the judicial power will intervene … [to ensure] a regular judicial trial
as in all cases of crime”).
In every prior conflict in which the United States employed military
commissions, accused war criminals were held equally accountable in the same
tribunals, under the same rules, for the same offenses, regardless of citizenship.
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Pet.Br. 48-50. The government attempts to distract from this tradition by recasting
the 1806 spying statute, which applied to “persons not citizens of, or owing
allegiance to the United States of America,” as demonstrating an alternative history
of invidious discrimination. Resp. 65. This is pure anachronism. Spying,
historically understood, necessarily required the spy to be an enemy agent.
Winthrop, at 766-67, Supp.App. 85-86. Citizens who engaged in similar conduct
were not spies, but war traitors and liable to prosecution, as such, under the 1806
law. 2 Stat. 359, arts. 57-58 (1806). In the Civil War, when national allegiance no
longer defined the enemy, this aspect of the spying statute was promptly replaced
with an individual’s nexus to “a state of insurrection.” 12 Stat. 340 (1862).
The only example of a similarly discriminatory law in U.S. history was the
Chinese Exclusion Act, 27 Stat. 25 (1892). It created a special administrative trial
process to prosecute violations of the immigration laws. More than century ago
(the very same year in which “separate but equal” was upheld, Plessy v. Ferguson,
163 U.S. 537 (1896)), the Supreme Court unanimously struck down this law
because it imposed criminal penalties on “persons,” in the language of the Fifth
Amendment, in a discriminatory manner and without the benefit of judicial trial.
Wong Wing v. United States, 163 U.S. 228 (1896).
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C. Under Any Standard, the De Jure Segregation Here was Invidious, Irrational, and Unconstitutional.
Regardless of whether strict-scrutiny applies, discrimination must bear some
rational relationship to achieving a legitimate government interest. Yet, as
evidenced by the extensive legislative record, the only apparent motivations for the
segregation of terrorism trials was lawmakers’ animus toward non-citizens and the
avoidance of the political accountability that might result if citizens were equally
triable. Pet.Br. 51-52.
The government does not really dispute this. Instead, it insists that rational
basis scrutiny is satisfied so long as this Court can divine a legitimate purpose that
discrimination “could” hypothetically have served. Resp. 67 (original emphasis).
This assertion, however, leads to an obvious question: What legitimate purpose
could Congress possibly have pursued by passing a law that legislators openly
acknowledged would segregate terrorism suspects for trial based on nothing but
citizenship, even when they were arrested at the same time for the same crime?
Pet.Br. 52. The government’s only response is the bare assertion of its “national
security interest in establishing a military forum in which to bring to justice alien
unlawful belligerents.” Resp. 67. But this just begs the question. It asserts nothing
but the decision to discriminate as a self-satisfying reason to discriminate.
The issue here is not whether the government has a legitimate national
security interest in establishing a “military forum” to try war criminals. It is what
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objective Congress could have rationally believed it could achieve by legislating
apartheid into the American criminal justice system. The law’s under-inclusiveness,
its exclusion of the equal, if not greater, threat to national security posed by
citizens, leaves no conclusion other than legislative “arbitrariness.” Baskin, at *3. It
is a law that self-consciously “lays an unequal hand on those who have committed
intrinsically the same quality of offense,” which is no less “invidious a
discrimination as if it had selected a particular race or nationality for oppressive
treatment.” McLaughlin v. Florida, 379 U.S. 184, 194 (1964).
If, as the government suggests, Congress segregated the judicial system
because it wanted to make convictions as easy as possible to procure and believed
this Court would be less troubled if this was first attempted on non-citizens, Resp.
68, then this Court has been given the best possible reason to invalidate this
unmasked denial of equal justice under law. “Providing equal justice” has always
been a “central aim of our entire judicial system[.]” Griffin v. Illinois, 351 U.S. 12,
16-17 (1956). Invidiously segregated criminal trials are unconstitutional and the
judgment below should vacated.
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CONCLUSION
For the foregoing reasons, this Court should apply settled law and vacate the
judgment below.
Respectfully submitted, /s/ Michel Paradis Michel Paradis Mary R. McCormick 1620 Defense Pentagon Washington, DC 20301-1620 [email protected] TEL: 1.703.696.9490 x115 FAX: 1.703.696.9575 MAJ Todd E. Pierce, JA, U.S. Army (Ret.) Senior Fellow Univ. of Minnesota Human Rights Center Mondale Hall, N-120 229-19th Avenue South Minneapolis, MN 55455 Counsel for Petitioner
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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)
Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitations imposed by Fed. R.
App. P. 32(a)(7)(B) as augmented by this Court’s order because:
X this brief contains 7,969 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
X this brief uses a monospaced typeface and contains ____ lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
X this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 point font size and Times New Roman type style; or
X this brief has been prepared in a monospaced typeface using _______ with __________________.
Dated: October 6, 2014
Respectfully submitted,
/s/ Michel Paradis Counsel for Petitioner
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CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2014 a copy of the foregoing was filed
electronically with the Court. Notice of this filing will be sent to all parties by
operation of this Court’s electronic filing system. Parties may access this filing
through the Court’s system.
Dated: October 6, 2014
Respectfully submitted,
/s/ Michel Paradis Counsel for Petitioner
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