first it must be an offense against the international law governing armed conflict and second it must not be a crime that entailed a jury trial write a common law conspiracy the encourage offense of agreeing to commit a torch or some other law by lation fails both conditions and for that reason it falls outside the exception to article three that the supreme court has recognized the law of war military commissions  intended to commit the elements of the substantive offenses they're also finding said he participated by creating the martyr will of two of the participants and there was also a finding that the actual offense was completed because there was a finding that he researched the effects the economic effects of the offense so this isn't your typical in co conspiracy right this is one perhaps have gotten closer to something like you're describing i don't i don't see how you can maintain that this is just a general run of the mill conspiracy the jury instructions here look nothing like the run of the mill could conspiracy instructions they include much more in fact they include language that the agreement intended every element of at least one of the offenses in the instructions go on to list all of the elements of the substan offenses and here we have a special verdict form in effect that showed that the panel members found that he conspired with respect to each of those that the individual was personally proven to have committed were themselves criminal this was an agreement to commit a crime that's how the government played it that's how the judge instructed it and that's what the members found and respect i think for this court to kind of go back after the fact in trying to cobble together from snippets of the record inferences that may have allowed the government in another case in another case in which it had tried another theory of here you're asking us to review a conviction not a statute in this particular conviction here there were specific findings that he directly participated with actual perpetrators of the september eleventh attacks by preparing their barter wills and instructions were written in the specification said that he prepared the declarations encrypt aeration for the acts of terrorism perpetrated so that's that's what the jury found that even if the even if in they were told you don't  actually was done it was the actual arabic and this is in the record i can provide the court page citations later was that he typed up the mortar wills based on videos after the september eleventh attacks there was there there was no finding crime conspiracy it's strange to say that military commissions lack the authority under the war powers of congress and the president to try people who are stopped before they murder innocent civilians i mean isn't it the case that that congressional war powers and the president's power commander in chief power should suffice to protect us from something like nine eleven happening as well as to punish people who are involved in perpetrating appen act absolutely the question is whether or not the war powers taken together or individually give congress and the political branches the power to remove a conspiracy prosecution from the federal courts and then sh but if the government wants to charge all of them alternative theories is it your position that the substantive crimes the pinkerton conspiracy have to go to a military commission but you have to have a separate trial an crime to commit a substantive offense of pinkerton conspiracy so i get that that's yes that's why ability for the crime that's a crime and that's not tried in article three have to be tried in article three court well define what work does that were defined do in the defined and punish clause it doesn't mean of the minimum congress can say we're gonna leave these conspiracy theories together we're going to say the conspiracy can be tried just is this something that was tried in common law that is in the in the words of the northern pipeline was destroyed at what smith's turned seven hundred eighty nine conspiracy to commit a war crime conspiracy to commit an offense is something that was tried we don't know that right there is there any example of a conspiracy to commit a war crime rather than with not just something that something like murder but an actual war crime was ever tried  that's not exactly the same thing as a conspiracy to commit a war crime well for the fact that that kind of conspiracy could be tried a common law doesn't necessarily mean that something so close to something that could all that could not be tried at com is that even when the underlying offense what you believe the object of the conspiracy does not entail a traditional trial a conspiracy to separate stand alone infamous crime of agreeing to commit a crime regardless of whether it ever takes place  commit a contempt if that could ever happen it would be subject to a jury trial requirement and a conspiracy to commit an offense against the law if we were subject to the jury trial requirement because of the really particular part it's unclear they can apples you give are on the low side conspiracies to commit things that are misdemeanors essentially this is something quite different this is a conspiracy to commit something on the high side none of those misdemeanors could be tried in military tribunals under any possible theory but the object here could be tried in a military tribunal and i take it what you're saying is that the conspiracy would have to be true if you wanted to charge both the conspiracy would have to go forward and an article three court and the object would have to go  forward in a military tribunal we have to split the split the indictment essentially is that right if the guy who wanted to do it would that would be a strategy that would be available to it if it couldn't prove the substantive offense in a military commission and was left in the conspiracy yes it has to take an individual to an article three court which is what they did in the golani case which is what they've done hundreds of times in terrorism cases since september eleventh they haven't done and they haven't split them hundreds of times that's the question i was asking  because the frankly i think this case is still pending and the government wants to know whether or not it can take again the offense that is the most probably the most emblematic of the federal judicial power conspiracy conspiracies are charged every single day including or other very serious crimes the last time we met we were greatly interested in the fact that you had not raised these arguments before and we disposed of the case on plane air review is there some shouldn't use that standard again  clearly convinced that the work of the military commission was unconstitutional ron we looked at this and we said it's not clear to us you have the civil work he says you have the world war two cases killing itself  and we have no instance where the supreme court has clearly said that the jurisdiction of the military commission is limited to international crimes of powers question it's a question about the of the courts to protect the federal judicial power and to not let what to be encroached upon which is about what that's what ex post facto is to prevent congress from approaching on the power of the court that's the nature of to address an incursion by the legislative branch on court power we don't have that concern in criminal cases do we don't criminal defendants have every incentive to raise claims in the first place we don't worry too much about them consenting across the board and even if they don't we always have a narrow reviews like the congress just can't keep these claims these constitutional questions away from us  crime itself is the supreme court has said that depends on how we read hearing because article three which you've cited many times does not have an exception for military commissions so under the plain language of article three you have a great case we have kiran creates an a textual exception to article three in the question then is how to interpret that exception sensible and and my concern has been why draw the line at international laws actual exception rather than where the quote talks about again this offense crime distinction that law if were offenses to the extent there is a discrete body of offenses that violate the law of war let's just assume for the moment under international law that those offenses just are not crimes that's why there is a textual exception to article three because article three speaks to crimes and offenses like petty offenses or outside of that exception and spying and  the republic well that's the governments are going about conspiracy as well and the question is if the military commissions act and the uniform code of military justice they refer to offenses that by for and for attacking the president with the same conspiracy language in his charge sheet in the federal conspiracy statute was an acted after he was charged and so it was a common charging practice back then to say conspire aiding abetting for the government to find difficult here first of all when article one was written where would the founders of thought that congress would look to determine what the law of nations is how much would be extremely lucky and how much would be internally looking how much would just be their own judgment and in particular in a case like this where you have war crimes as the object and the question really is how big an orbit around war crimes congress has the authority to define him punish or include in that other war powers how do what would they but there weren't i assume there were not tribunals for human rights violations back then like there are now there probably weren't a bunch of law review articles and international law scholars writing where was congress supposed to look and how do we know it wasn't to look internally and just t here and b is is irrelevant to the question of what the actual crime congress is identifying is it and what the framers have done they would have looked to state practice in what the state practice tell us here it's a tax practice tells us that the united states does not think conspiracy is an offense against the law fo and i'm really trying to talk about would get what was the thought about we have to figure out where the constitution how much leash they give congress and where they tell congress to start its analysis from and deciding what is an offense against the law of nations such didn't are going to actually support the notion that congress has a little bit bigger orbit because there was all about counterfeiting currency and they said look we need to sort of have a practical understand you know how this is to be enforced and we're going to take it out to include security you know take securities and war crimes and talk about compare apples and oranges but the concept of congress having leash to draw wider circle offense is the agreement to commit a crime that is an infamous crime that has been recognized you have to decide that we only have to decide whether the agreement to commit a war crime and to take at least one overt act and to have this is the camel entering the tent this is congress saying we can try conspiracies to commit any offense under the law of nations and especially executive trial chamber and we should begin to think about the breath of what offenses against the law of nations actually compass is today you were creating a precedent where almost any conspiracy if the government can can relate in some fashion to national security or the world powers would then be triable in a military commission there's a same time why is congress held hostage to someone somewhere decided that conspiracy to commit genocide that's ok that's different kinds spirity to commit aggressive war well that's ok we'll let that one in the door try criminal enterprise we'll let that in the door pinkerton ok we'll let that in the have been charged with conspiracy have been charged with conspiracy to commit aggressive war aggression is a crime that applies to state actors only under international law why can't congress say in this matter why can't it be it please the court in the military commissions act congress responded to the call from the supreme court and made clear its judgment shared with the executive branch that in yulian unlawful enemy combatant may be tried in a military commission for conspiracy to violate the laws of war nothing in the constitution precludes that shared judgment congress did not babycakes conspiracy from whole cloth and that's true in at least two important senses first congress's judgment is consistent with the experience of our wars and the acts and orders of our war time tribunal's which in turn reflect a long history of trying military in a military commission conspiracy to violate the laws of war that includes the highest profile military commissions our nation has seen including the trial of the lincoln conspirators at but the problem the problem they are so you have the martial law right we don't know what it is we don't know what type of law of war military commission this is and if it's under martial law your analysis fails it's not there in terms of what crimes can be tried or thinks is in the commission so your honor i think we would say at the very least at a minimum it has to be a trial of an of an enemy belligerent and the crime has to be so in the context of an associated with hostilities ok but that's the let's assume you have such a person can that person be charged with a crime that is not a violation of international law and i domestic history in american domestic law of war that's right your honor and then second it's firmly tethered in international law to pick up on the point that judgment that was making there is no dispute that any of the objects of petitioners conspiracy are themselves violations of international principles of international law found in durham for which which expressly recognize only conspiracy to wage aggressive war the geneva convention doesn't include conspiracy to commit war crimes the two charters creating it was flogging to school through the list in their brief yugoslavian rwanda don't conspiracy only for genocide in the rome statute so their point is that while congress definitely you have for the proposition that an international tribunal or international commission or group of them has recognized as a violation of international law conspiracy to commit  contention is not that there are examples in our brief first of all of both the french and the dutch examples where that was tried second the point is not that our point is that although there isn't yet a consensus that international law permits that there is no we do not agree that there's that that lack of consensus is a suggestion that international law forecloses if those are two very different propositions but the point of the analysis in the brief is that each of these treaties and agencies actually considered the possibility of conspiracy to commit war crimes as a violation of international and rejected it and in fact the only one they permitted in the end his conspiracy to commit genocide so their argument is that this decision is resolved internationally it's done so your honor i don't think that that's correct and i don't think i can say understand why because because there's a difference in international law between the consensus that is something is impermissible  consensus on conspiracy they omitted it that is not the same thing in an effort to get consensus in international law is not the same thing as saying that international law would you agree then would you agree that if there was clear evidence that international law had rejected it and i understand you quote quibble with the premise come back to that but would you agree that if there is evidence in international law considered and rejected the defining punish clause congress is congress would face a much steeper hurdle of course here we don't have just to find and punish we have all of the additional war powers which are not so limited and so i don't think your honor that the international law of war is the standard and i don't think that going like that in permissible or not so you are i don't want to say that that isn't permissive let me make two points here the first is you don't want to say i don't want to say it's impermissible let me explain why i think this case is easier precisely because it has a historical grounding and because it is tethered to international law and that's what makes this and if i may the third is because congress and the president have agreed in so we're in the youngstown category one framework for the first time in our nation's history the question about whether congress is views on this question were quite relevant to what the court was thinking and i think that's further evidence going to judge tables point that what the court was asking was not really the question of what this international law think because surely could court didn't need congress to decide that what the court thought was that congress could weigh in intelligent on the question about whether conspiracy to commit a war crime was itself something that could be tried and i'm going to you cyber attack point i think that's exactly why this court should be very hesitant to reach out and decide the precise limits in a case that doesn't present them right for the government to make i'm really puzzled why we are here with this very difficult very important very cutting edge question when it appears from the government's theory that the government could have charged this terrorist were aiding and abetting well with joint criminal enterprise and i'm just baffled by that and i wonder if you have an answer your honor i don't there was a discussion in the military commission proceedings that proceeded with an enterprise theory and the military had cut back on that because it perceived in the use of the word enterprise some tension between rico and the military commissions were it understood congress to have deliberately excluded enterprise what about it putting that aside your honor i guess i don't have as to the reasons for the military  charging discretion the prosecutors pursued a theory that congress had blessed and that had been endorsed and that in all seven of the current cases were charges have been referred in addition to the substance of crimes there so this is something that congress as congress and the executive identified as a useful and important part of the aspect of the armed conflict and it was certainly well within prosecutorial discretion to charge to take congress up on that on that invitation let me follow up in slightly different way is it your view on this case that alba little could have been charged with aiding and abetting the war crimes of nine eleven and relatedly could he after this case were that court to agree with the panel i think it is could you have i think it's quite possible that he could be charged with the for example a joint criminal enterprise and perhaps with aiding and abetting whether the commission would convict or not i don't know but i think those that would certainly be something that might be might be charged but i don't think that that changes the course of that happening and i haven't looked at the double jeopardy analysis it would depend of course what this court said but i think the important thing here is that we have a conviction from a military commission jury in the fact that the prosecution might or might not have pursued a different theory really i think is a is sort of a different question the court has to face this question may be getting at and i'm not trying to put words in your mouth is what it says or proceeding in this need cause here judge question rather than branching out into this other area there were clear options available to the prosecution and both judge henderson speaking for the in bank court and i writing separately try to understand why this is necessary to the extent that military tribunals are an exception to article so the need for that so there are i think to ask  first is conspiracy itself and i actually think i believe it was just pillars question earlier too to petitioners counsel that got that exactly why conspiracy is very important in a situation in which there are when the objects of the conspiracy are tax on civilians  attacks on civilian objects and the like it's very important that conspiracy be available so that the government need not wait till the the the the underlying work crimes were committed before it acts and charges so as to address that well your hon any domestic offense a matter for trial before a military commission when it's a time of war and the person is quote an enemy respond to them and so let me let me do two separate things first of all it with respect to why military commissions are important i think they are important precisely because they offer they reflect the question ok we should not set the outer bands i totally agree that we need to know what the consequences of our decision is and so so you're going to just let me just follow up to my question when it's for just suppose suppose the government materials and a map of the washington metro can those individuals be arrested and transferred to a military base and tried before commission for conspiracy your honor i'm sorry can you give me the facts i have again there's a government arrests for individuals in washington apartment and they have explosives weapons guns al qaeda materials that from online online al qaeda materials about terrorism and a map of the washington metro can they be charged with conspiracy and transfer to a military base and tried before a military commission  it would depend on a number of factors including whether they were aliens whether they were just told they were aliens aren't given a lawful visa your id the answer i don't know the answer to that question i assume that the answer it seems like that would be enough to charge spears under your evidence that they were going to attack civilians but of course it's enough to charge conspiracy it's a classic conspiracy my question  conflict and possibly identifying these people in the middle of routes to charge them in a military commission that's my question so you're i think that might well be enough just as if we had encountered the nine eleven attackers as they were getting on the plane that might have been enough but i think it's important your honor that the court understand that what we're talking about here is not at the outer boundaries mr lu was not in fact captured you understand my question i asked you my question in terms of our need to understand consequences of the decision i totally agree with you that the hypothetical i gave you is not the album lucas suppose let me just change one fact suppose instead of al qaeda material in the apartment they found material from the extensive online material about domestic terrorism produced by isis what about that could they do i know the answer to whether the united states has taken a position on whether  still is engaged in hostilities against the united states and according to yesterday mr new york times united states has flown almost one thousand four hundred missions against eisel in syria your honor that would be a question for the charging decision but if i is but what you're telling me is that each of these cases under the government's theory these conspiratorial could be tried could be removed to up a military base in the united states tried before a commission right so if there is an enemy belligerents that may well be the case here one other i just have one other question could you say something about me at this point about the standard of review we apply here you you say in your brief that you say that sheriff reinforced sharif reinforces the view that that the court hasn't created any exception for normal article three cases right yes so do you think do you before the panel the government's view was we would review this to  know has that changed your honor the government's position is that the court should review per plane error and i think the how do you reconcile that with sharif and sure where the court although the personal side of the article three issue had conceivably been waived in both cases the court went ahead and resolved the question as to whether there was a structural problem because i think i would have had to do that here no you don't think so i think what happened in sharif at the at the what the court did at the end of its opinion was remand to the seventh circuit to determine whether the article three claim had been forced but that's after the court had concluded that there was no structural article three problems because of the way the agency was structured there concluded that they had it that there was sufficient federal court a judicial branch oversight so that as long as it was done with consent there was an article three problem but what the core of my point is is that the court w had and resolved the structural article three questions it decided the novel that there wasn't one so i have two points on that your honor if i might first of all what the court did was remand to the seventh circuit to determine whether the objection of been forfeited what was before the seventh circuit was the question about whether this was in fact a stern claim and whether there was consent at all and what the seventh circuit said on remand was even assuming that this was an unconsented stern claim the forfeited that claim which is exactly what the supreme court has suggested a second i think the broader point here your honor is really the one that i understood judge millette to have made which is that what the case is about sure and what are getting at is something quite different they're getting at the situation where if you honored consent and forfeiture the supreme court would never be able to resolve the question that is not the case here is a very different context coming up in the criminal context where the isn't there is a plane or issues because there was a boycott by petitioner of the proceedings themselves and certainly the issues are being litigated in the subsequent military commission proceedings and so the kinds of concerns that cause the court to  different elements of this in sharif and sure one question was had the person raising the article three enter proceeding consented to participate in which  the court goes ahead and takes a look at the structure and it says it concludes that where someone participates voluntarily or with consent of process and sufficient federal court supervision read the cases that were so yes i think it is your honor we read it differently we think that that what the court said was much more broadly that the article three aspects could be forfeited and that that's what the court said but and i think also the  te the way the court has read has read sure which is to say sure is an exercise of the court's discretion and if i could get to that even if you are you disagree with this the question before the court is is this the kind of case where you would like to exercise your discretion to reach that the petitioner argues that you should because this is because the cause of the importance of the issue but i would suggest that actually the exercise discretion runs in exactly the other direction which is to say in an issue that has already deeply divided the court there is a principals of constitutional avoidance and issues about and about setting the policy for the conduct of our wars would suggest that this court really hesitate before exercising it discretion to reach an issue that it didn't have to reach because the issue wasn't raised by petition or below and so to the extent the quote believes that there is discretion and i think that's what clout and sure stand for that at most the court has discretion to reach the structural decided on a plane or i think that's exactly right i think that is what principles of constitutional avoidance are and out with the panel decision did was really set set the united states military policy in the use of military commissions for all wars going forward providing authority so the question here is whether it's plano or not when you're in category three of youngstown not when congress has put an express limit on the executive branch authority but when congress and the executive branch have joined together to to i have a separation of powers question did you guess here so i think the surprise i would why would why would the agreement of the president and the congress affect the court's view of the question of whether an article is that they exist at the judgment of the political branches an exercise of the war powers does seem to me to implicate exactly the kinds of concerns that youngstown was was interested in you know finish your point  so i'm i'm curious about the scope and nature of your argument about the american common law of war because i heard you just say earlier today that conspiracy  recognize international law and it wasn't clear to me entirely from your briefing that you were arguing that the american common law of war and practice is is an effort to achieve recognition in international law by the international community well whether it's just part of the domestic separation of powers jurisprudence and if it is the former if it's the united states is fullaway into an effort to push the boundary of international law i understand that but i find it quite surprising as a position for the united states to take because of course as i'm sure you consider that would mean that other nations if if we prevailed on the international law or recognize incur a conspiracy that would really put our people and our military in some jeopardy and so i'm i just want to understand what you what role you think and what limits the american common law of words as you've cast in this case place so you are a couple things first of all the rest of prosody concerns that your honor identifies a real the will agree with the point judge kavanaugh need in blue which is to say they are real that's the reason why the united states complies with international obligations but that's a judgment for congress to make and that is the judgment the congress consider the into the reciprocal implications are reflected throughout the debates on the two thousand and six act and it is something that congress considered and that the executive branch is considered and made that judgment as to exactly what i think the law of war relevant law word is what we've said is law where was the international law of war as supplemented by the experience in practice of our wars and our wartime tribunal so i haven't read that in time and time again but it sounds i mean as i've always understood the american practice is the reason our courts and we and our commentators well see attorney general speed look to the american experience is because it's our precedent about international law and you're making a different argument so i think i am you're i don't think that that's a fair reading of how the court in homs on the court in kiran really approach this the it's possible to say i think as you're on this question suggests that in fact you look to american law because you're just trying really to figure out what the international law is but i don't think that's a fair reading of what the court actually did the court didn't look to french and german and dutch traditions what the what the court did was spend page after page looking at the american precedents and the american law of war and then at the end in the plurality opinion said yes international law confirms that i think what the court was reflecting is that the common law of war is something that has always been very much a  part of of military commission experience and it's relevant to the article three analysis article three is a situation in which i'm sorry i just finished the sense in which history matters and the kind of history that we're talking about here is relevant to the court's the court's article yes well i think what it said it confirms that it's not within the law of war i don't know the number of the questions they insert the word international which i don't think is in those opinions but a couple of points on both kiran and harmed on your ar first of all kiran makes very plain on pages forty five and forty six that is not articulating the outer bounds of the executive authority in fact what it says is this is we refuse to identify the out of bounds because this is plainly within those bounds second is the point that i made earlier which is that both curan and harm done were operating in a situation in which the court viewed congress as having a placed a constraint through section eight twenty one article fifteen that military commission proceedings had to be under the quote law of war and that is this precise constraint that congress removed in two thousand and six from these military commissions and so i do think that it's a very different analysis that the court is going through now now that congress has acted from what the court was doing in here and what the court was doing hunt down and that's not a surprise what the court said over and over and done both the court and the plurality was and analyzing this at least in the absence of congressional action congress hasn't acted to define and curing that said congress hasn't crystallized the requirements of the law of war when all of those decisions are doing i submit is asking congress to weigh in precisely because the supreme court has recognized that this is an area where the answer isn't just we look to the commentators on international law and figure out what they think baseline arguably should be the text of article three which contains no exception for military commissions and then the argument would go the court has said is that article three reflects reflects historical practice and that the regardless of whether you construe it broadly or narrowly we think that this this conspiracy because of the long practice in tradition because of the ties to international law would fall within what the court expressed as the exception for military commissions when you look at human machine gun you look at kiran what i think you see is it is a in approach to international an approach to the question under article three that's quite contrary to the one petitioner advancing here today it's one much more of deference it's one much more of flexibility and it's much one much more of allowing the united states to lead in these areas and i think that those cases i think are the ones which suggest that that whether you view that exception narrowly or broadly it's firmly established and the history and the history in the way the supreme court has approached it say that this fall squarely within it one other question standard for review i would have thought that the as the petitioners brief says the constitutionality of the military is jurisdiction over particular offenses always reviewed to novo because it's a question of jurisdiction kiran refers to it on page twenty five  something that the court in the lul address to the court said that the m c a expressly confers jurisdiction on military commissions to try the charged offenses the question whether that act is unconstitutional does not involve the court statutory o constitutional power to adjudicate the killers washington is whether i think the larger question is does article three confer jurisdiction on military tribunals over this kind of offense and so on i think the answer to that is actually s remember i'm sure there was a ensure there was a challenge those quite analogous which is to say that the argument was the that the case couldn't be brought before the c s t c and what the court said there was not this is subject matter jurisdiction so we're done the court went into the article three analysis that i discussed with judge table and obviously you can take from that different things but i think the one thing you can't take from that is the mere fact that there's a constitutional challenge to the assignment of jurisdiction to another forum following up on my previous question about standard of review i was surprised that the government didn't make more of the language in camera and that we can only overturn the work of the military conviction argument is exactly that argument that when congress and the executive have acted together this court should be quite wary and should require only the clearest evidence of error before it moves forward so i guess i think that we are in a stronger position than we were in curan because as i say that really is important i think that what the court and harm done said was section eight twenty one is the constraint and express limitation on the executive branch's authority and even in that context the court said what your honor  alluded to in in curan i think this is a stronger case for four whether you call it deference or whether you call it the court has to be firmly convinced that error has happened i think this is a stronger case precisely because they constraint and precisely because congress did so in response to the supreme court's invitation to do so with the supreme court suggesting that that would be relevant to their quite relevant to their analysis and so i guess i know that we also we  invited you to address the standard of review so perhaps i'm not surprised at the position that the government took but it is a change of position because before i would be i'm back to previous time when we were here we didn't decide this issue but question and before the panel government counsel specifically said that he did not that it was forfeited it was repeated it was that long colloquy over several pages of the transcript no this is not counsel but but congress said you know as i understand what you're saying maybe you're challenging the proceedings as unlawful perhaps even the charge is unlawful maybe from your perspective it doesn't state an offense so that's the way i interpret your view so that you know the route of forfeiture seems to me to head against the government arguing here that we should use plain our view and then the subsequent litigation of the case by the government and i do appreciate your position that because this is a difficult issue plainer of you might be appropriate but i had thought that it wasn't a question until i read your brief that we were going to be looking at the state so a couple of  sufficient to preserve the the argument despite what he said despite what he said because i didn't think it's a moral motion dismissed for lack of jurisdiction so i think you remember the question that he was being asked was  is this by showing up and do i waive my boycott right and what judge gregory said was no this is a can in that sense to a motion for lack of jurisdiction but what you colloquy is that it's quite uncertain he says perhaps you're making this to the extent you're making that unless this court were to adopt a very different preservation rule than it has applied in criminal in the criminal context i don't think that that's the kind of argument that could preserve a jurisdiction and indeed there was no suggestion the web mr bellew was saying gosh if you just tried me in an article three court i wouldn't be boycotting so i don't think the preservation of the money is really the judge says this is an objection than perhaps i think that last paragraph would suggest but i but be that as it may i think if the court at the end again stepping back i think the real question for the court is if you think that the government has essentially forfeited  forfeiture then the quote is is is left with two discretionary judgments which which which one trumps and this goes back then to the point i made earlier and to the way your honor started the question which is to say to the extent the court believes it's in that box which we don't think it is but you said the court does then the question is is this the kind of case that the court should exercise its discretion to decide and i think the principles for the reasons i said and not just to repeat but just to put the final point to the the extent th quid has that discretion sent the question should the court actually i think to act to constrain the powers of the executive branch in a situation which the court has already indicated some deep division in the expressed opinions already i think those things counsel very strongly for not suggesting the government has forfeited forfeiture in the way that you are sixty four for the government to prevail it suppose we we review this to no do we have to believe that prosecutor your honor the answers your question is no just this one and i think it's very important for a number of reasons first of all the concern about in co a conspiracy is the idea of a tentative agreements and half hearted gestures are the kinds of things that shouldn't be swept up in conspiracy but that is not at all what we have here when we have here is overt acts that involve military training at alpha rupe the swearing of byetta bin laden the swearing of by at by the nine eleven hijackers and acting as a personal media secretary t and we have as your honor points out no doubt that the nine eleven attacks happened whatever the concerns about a broad version of conspiracy or the conspiracy that approaches new agreements or tentative understandings or anything like that that is not what we have here and so the honor's question much in light of my earlier point is that no what your honor should be deciding is this particular conspiracy and whether this particular conspiracy is one that that the court should find troubling and you know stepping back i think that in coate conspiracy as a general matter is something that there is a history of trying the example in our brief and both clear and in calls call pa separately charged it but again to the extent the court has the concerns about the scope had more knowledge of the nine eleven attacks so i don't think it's our contention that he had for knowledge of the nine eleven attacks i think our contention is that he agreed to commit the list of offenses which include attacks on civilians and attacks on civil objects and things like that we did not i don't think we're tempted to prove that he had specific for knowledge of the nine eleven attacks themselves although those were an object of the conspiracy all right from the best i do have some more specific points in response to questions given to my friend and to me but the point i think that needs to be stated right up front is that the government has offered you no rule it is demanding according to its it's firmly rooted in historical practice and we can leave for another day a case where an offense is not rooted in historical practice but enemy combatant in a war or hostilities an offense rooted in historical practice so i think that's the  well i didn't hear that as a limit i heard that is if that's the when it suffices leaving open for you know another day to argue about whether the historical practice is necessary in the event congress wants to establish new offenses sure well if if that is their t est that's not the military commission exception the supreme court articulated in ex parte karen and i can say that with great companies particularly on their effort now to say well he's a bad guy he's an enemy combatant it's obvious that and asked a question about what if international law had specifically considered and rejected and how how would we know when it's not like a supreme court of international law out there how would we know when international law has rejected something and in particular what would what what would i know your position here is conspiracy clearly out what would happen what we should congress have and what limits what they have a different sort of your sources and it really was fifty fifty down the middle there at diametrically opposite views never no way this is international law sure it is sure it is if you had practiced in fact george washington when he tried to there was a question about how you could execute a spy and major andre because he was a british officer asked to be shot and george washington referred that to his military lawyer at the time  concern about agreements the concern about agreements is that proving them is a fundamentally judicial inquiry and this case shows that the it was not a battlefield evidence case they called cooperating witnesses who were serving time up in new york they called f b i interrogat conceded the he said when asked whether bill could have been convicted for aiding and abetting he said i don't know i don't know if the government doesn't know whether i will could have been convicted for some substantive offense under some other theory that the government no conspiracy prosecution the members found that after being instructed precisely that that was what they were supposed to do and then today my friend stands here and says i don't know if we could actually have the evidence to get him on anything else and if you say they don't know today this court doesn't that was not at issue here the government went for the tradition there was no question about victims there was no you know there was no measure of the sentence based on the impact to the victims of nine eleven attack and so i mean if that construction is available to the government in other completed conspiracies and that sort of just a part of if that's just a reframing of joint criminal enterprise that may be ok but that is so different from our case that i hesitate to take why is it not a statutory defense on your unless and to define and punish clause case no but it was an article for a case where the carter terry was the discretion of the district of columbia case which where congress has a form or you don't think the fine and punish has any relevance at all i think the secondary relevance because ultimately the was so is blowing up the world trade center crime trial by jury and sure but if but if it's a crime under international law and its elements satisfy a crime under international law you know but still trial you're not suggesting that this powers it unquestionably deals with people who could be termed any combatants there are many international offenses that look awful lot like treason but it certainly could not be tried in military commission and in fact when it was in the context of the civil war the convictions were thrown out because there were only consistent values and that that highlights for me a concern about your position because you would as a matter of u s constitutional law established international law as a limit for all time on the president congress essentially conceding that it's unconstitutional because article fifteen as construed both kiran and reaches quote all offenses which are defined as such by the law of war and constitutionally be included within that jurisdiction so article fifteen already reached to the end but the outer limits of congress's power and so if the government is standing here saying that he can only win by state because oracle fifteen has essentially been made to reach even further that's a concession that and the court will go on to struggle over the matter of taking our submission th