# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



### Argued October 22, 2014 Decided June 12, 2015

No. 11-1324

A LI 

### H AMZA 

### A HMAD 

### S ULIMAN AL 

### B AHLUL 

### , P ETITIONER



### v.

U NITED 

### S TATES OF 

### A MERICA 

### , R ESPONDENT



### On Petition for Review from the United States Court of Military Commission Review

Michel Paradis , Counsel, Office of the Chief Defense Counsel, argued the cause for petiti oner. With him on the briefs

were Mary R. McCormick , Counsel, and Major Todd E. Pierce

, JA, U.S. Army (Ret.).

Jeffrey T. Renz was on the brief for amici curiae First Amendment Scholars and Histor ians and The Montana Pardon Project in support of petitioner.

Agnieszka M. Fryszman was on the brief for National Institute of Military Justice as amicus curiae in support of petitioner.

McKenzie A. Livingston was on the brief for amici curiae Robert D. Steele and other former members of the Intelligence

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Community in support of petitioner.

Robert Barton and Thomas J. McIntosh were on the brief for amicus curiae Professor David W. Glazier in support of petitioner.

Jonathan Hafetz was on the brief for amici curiae Asian American Legal Defense and E ducation Fund, et al., in support of petitioner.

John F. De Pue , Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Steven M. Dunne , Chief, Appellate Unit, and Joseph Palmer

, Attorney. Francis A. Gilligan , Office of Military Commission, Lisa O. Moreno and Jeffrey M. Smith , Attorney, U.S. Department of Justice, entered appearances.

James A. Schoettler Jr. was on the brief for amici curiae Former Government Officials, et al., in support of respondent.

Before: H ENDERSON 

### , R OGERS 

### , and T ATEL 

### , Circuit Judges

Opinion for the Court by Circuit Judge R OGERS



### Concurring opinion by Circuit Judge T ATEL



### Dissenting opinion by Circuit Judge H ENDERSON



### R OGERS 

### , Circuit Judge : Pursuant to the Military Commissions Act of 2006, 10 U.S.C. §§ 948a et seq. (“2006 MCA”), a law of war military commission convened at Guantanamo Bay, Cuba, found Ali Hamza Ahmad Suliman al Bahlul guilty of material support for terrorism, solicitation of others to commit war crimes, and inchoate conspiracy to commit war crimes. The court, sitting en banc , vacated Bahlul’s

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convictions for material support and solicitation as violative of the Ex Post Facto Clause of the U.S. Constitution, see Bahlul v. United States , 767 F.3d 1 (D.C. Cir. 2014), and remanded Bahlul’s remaining challenges to his conspiracy conviction to the original panel, see id. at 31. Bahlul contends that his inchoate conspiracy conviction must be vacated because: (1) Congress exceeded its authority under Article I, § 8 of the Constitution by defining crimes triable by military commission that are not offenses under the international law of war; (2) Congress violated Article III of the Constitution by vesting military commissions with jurisdic tion to try crimes that are not offenses under the international law of war; (3) the government put his thoughts, beliefs, and ideas on trial in violaton of the First Amendment of the Constitution; and (4) the 2006 MCA discriminates against aliens in violation of the Equal Protection component of the Due Process Cl ause of the Fifth Amendment.

Because Bahlul’s challenges include a structural objection under Article III that cannot be forfeited, see Commodity Futures Trading Comm’n v. Schor , 478 U.S. 833, 850–51 (1986), we review that challenge de novo , and we conclude, for the following reasons, that his conviction for inchoate conspiracy must be vacated.

I.

Bahlul contends that the juri sdiction of law of war military commissions is, under the Constitution, limited to offenses under the international law of war, and thus that Congress has encroached upon the Article III judicial power by authorizing Executive Branch tribunals to try the purely domestic crime of inchoate conspiracy. As a threshold matter, the government maintains that Bahlul has forfeited the Article III challenge, having failed to raise the argument at his trial before the military commission. Bahlul’s challenge, however, presents a structural

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violation of Article III and is not waivable or forfeitable.

The Supreme Court held in Schor that an Article III structural claim of encroachme nt on the judicial power was not subject to waiver. Id . at 850–51. The Court explained that “Article III, § 1, not only preserve s to litigants th eir interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as an inseparable element of the constitutional system of checks and balances.” Id. at 850 (internal quotati on marks omitted). Further, the Court explained, it “safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts to transfer jurisdiction to non-Article III tribunals for the purpose of emasculating constitutional courts, and thereby prevent[s] ‘the encroachment or aggrandizement of one branch at the expense of the other.’” Id. (quoting Buckley v. Valeo , 424 U.S. 1, 122 (1976)) (alterations and some internal quotation marks omitted). The Court held:

To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III, § 2. When these Article III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.

Id. at 850–51 (internal citation omitted). As a result, even though Schor had consented to adjudication of his state-law claim by an Article I tribunal, see id. at 849–50, the Supreme Court analyzed his structural challenge de novo

, see id. at 851–57.

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The Court reaffirmed Schor ’s analysis in Plaut v. Spendthrift Farm, Inc ., 514 U.S. 211 (1995), explaining that it was consistent with a rule that although res judicata claims were waivable, courts had discretion to excuse the waiver. See id. at 231–32. Accordingly, this court, as well as every other circuit court to address the issue, has held that under Schor a party

“ could not . . . waive his ‘structural’ claim” under Article III. Kuretski v. Comm’r of Internal Revenue Serv. , 755 F.3d 929, 937 (D.C. Cir. 2014) (emphasis added); see In re BP RE, L.P.
, 735 F.3d 279, 287–90 (5th Cir. 2013); Wellness Int’l Network, Ltd. v. Sharif , 727 F.3d 751, 769 (7th Cir. 2013) ( rev’d on other grounds ); Waldman v. Stone , 698 F.3d 910, 917–18 (6th Cir. 2012). Most recently, in Wellness International Network, Ltd. v. Sharif , No. 13-935 (U.S. May 26, 2015), the Supreme Court again confirmed that “ Schor forbids [] using consent to excuse an actual violation of Article III.” Id. , slip op. at 14 n.10; see id. at 9, 11–12; accord id. at 12 (Roberts, C.J., dissenting).

Of course, the issue before us is not waiver but forfeiture. See generally United States v. Olano , 507 U.S. 725, 733–34 (1993). The Supreme Court’s analysis of waiver in Schor applies to forfeiture as well. Th ere, the Court rejected waiver of Article III § 1 claims “for the same reason” that parties cannot waive Article III § 2 jurisdicti onal limitations, 478 U.S. at 851, which are not subject to forfeiture, see United States v. Cotton

, 535 U.S. 625, 630 (2002). The Court cited United States v. Griffin , 303 U.S. 226, 229 (1938), where it had addressed de

novo a subject-matter jurisdiction challenge that the defendants had failed to raise in the district court. In Schor , the Court explained that the analogy stems fr om the fact that both “Article III limitations . . . serve institutional interests that the parties cannot be expected to protect.” 478 U.S. at 851. As four Justices observed in Freytag v. Comm’r of Internal Revenue

, 501 U.S. 868 (1991), “[i]t is clear from our opinion in Schor that we had the analogy to Article III subject-matter jurisdiction in

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mind.” Id . at 897 (Scalia, J., joined by O’Connor, Kennedy, and Souter, JJ., concurring in part and concurring in the judgment). Likewise in Stern v. Marshall , 131 S. Ct. 2594 (2011), the Court analyzed de novo a structural Article III challenge to a bankruptcy court’s jurisdiction even though that challenge had not been raised in the bankruptcy court. Id. at 2601–02, 2608–20. Again in Sharif , the Court reviewed the structural Article III issue de novo , even though the claim had not been raised in the bankruptcy court or the district court. See Sharif

, No. 13-935, slip op. at 6, 12–15. We therefore hold that under Schor ’s analysis, Bahlul’s structural challenge under Article III is not subject to forfeiture.

Such searching, de novo review is appropriate because Bahlul’s Article III challenge implicates the power of the political branches to sideline th e federal courts. “Trial by military commission raises separation-of-powers concerns of the highest order.” Hamdan v. Rumsfeld , 548 U.S. 557, 638 (2006) (Kennedy, J., concurring in part). “Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts . . . .” Reid v. Covert , 354 U.S. 1, 21 (1957) (plurality op.). The government has conceded, in light of Schor , that to the extent Bahlul raises a structural challenge, it is subject to de novo review. See Appellee’s Br. 50; Oral Arg. Tr. 29, 30. It mistakenly suggests, however, that Bahlul’s Article III challenge asserts only his personal right to a jury trial, which is subject to forfeiture and thus plain error review. See Appellee’s Br. 49–50. This ignores Part II of Bahlul’s brief where he discusses the “judicial power” and relies on Ar ticle III structural precedent of the Supreme Court in maintaining that “[t]his [c]ourt must be sure that the political branches are not seeking to ‘chip away at the authority of the Judicial Bran ch . . . . ‘Slight encroachments create new boundaries from which legions of power can seek new territory to capture.’’” Appellant’s Br. 27 (quoting Stern

, 131 S. Ct. at 2620 (quoting Reid , 354 U.S. at 39 (plurality op.)));

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see id. at 27–37; Reply Br. 20.

Our dissenting colleague misreads Schor in maintaining that its holding, quoted above, does not speak to waivability or forfeitability at all. Dis. Op. 11–18. To the contrary, the Supreme Court, at that point in its opinion, was addressing the distinction between the waivability of the right component and the structural component of Article III § 1, and concluded that only the former was waivable. See Schor , 478 U.S. at 848–51. The Court reiterated that distinction in Sharif , No. 13-935, slip op. at 9, 11–12, and emphasized that Schor “forbids” waiver of the latter, id. at 14 n.10. The dissent suggests that Schor ’s nonwaiver holding applies only to substantive rights, not arguments. See Dis. Op. 17–19. But the analysis in Schor applied to both “consent and waiver,” 478 U.S. at 851 (emphasis added), and later Supreme Court precedent confirms that Schor ’s non-waiver holding applies to “defense[s],” “doctrine[s],” “challenge[s],” and “claim[s],” not just rights, Plaut , 514 U.S. at 231–32. Indeed, the discussion in Plaut about excusing waiver in the res judicata context would make little sense if waiver meant there was no violation in the first place. See id. at 231. Under Schor and Sharif , parties can waive neither a separation-of-powers violation nor a separation-of-powers challenge. Our colleague also confuses Sharif ’s analysis by conflating the individual right and the structural interest protected by Article III § 1. See Dis. Op. 14–17. Each acknowledgment of waivability in the Court’s opinion refers to the individual right. See Sharif , No. 13-935, slip op. at 2, 9, 11, 12–13, 17, 19 & n.13. By contrast, each time the Court discussed the distinction, it made clear that the structural interest, unlike the individual right, is not subject to waiver. Id. at 9, 11–12, 14 n.10. The Court explained that it could “not rely on Sharif’s consent to ‘cure’” an “actual” separation-of-powers violation, but simply treated his consent as relevant to the merits question of whether “such violation has occurred” in the first place. Id . at 14 n.10 (alteration omitted).

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Our dissenting colleague also misinterprets Sharif to suggest that structural Article III claims can be forfeited. See Dis. Op. 15–16. Having decide d the structural question de novo

, the Court remanded two questions: Whether Sharif had in fact consented to adjudication by the bankruptcy court, and if so, whether he had forfeited his right to adjudication by an Article III judge by failing to raise an Article III objection in the district
court. Sharif , No. 13-935, slip op. at 6, 20. The reference to forfeiture is unremarkable. If the Seventh Circuit on remand finds that Sharif consented, then all that is left for the Seventh Circuit to decide is Sharif’s personal right claim, and it has always been clear that individual rights — even individual Article III rights — are subject to forfeiture. The Court resolved the structural issue de novo without regard to any possible forfeiture. Even the Justice who was certain that Sharif had forfeited his constitutional claim thought it proper to resolve the structural Article III issue de novo

. See id. at 1–2 (Alito, J., concurring in part and concurring in the judgment). Indeed, the Court tied its remand instruction to the contentions in the petitioners’ brief, see id. at 20, which acknowledged there are some Article III claims that “raise ‘structural’ concerns that litigants may not waive or forfeit.” Br. for Pet’rs Wellness Int’l, et al. 52.

Our analysis would not change even if, as the dissent maintains, the Court in Schor had instructed that courts should excuse waivers of Article III stru ctural claims, instead of holding that such claims were unwaivable. See Dis. Op. 12–13, 19. The Article III challenge in Bahlul’s case goes to the heart of the judiciary’s status as a coordinate branch of government. Our colleague’s focus on the fact that Bahlul is “concededly — and unapologetically — guilty of the charged offenses,” id. at 25, is a red herring. To excuse forfeiture would not be for the purpose of protecting an individual defendant, but to “safeguard[] the role of the Judicial Branch in our tripartite system.” Schor , 478 U.S.

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at 850. The court would vindicate “the federal judiciary ’s strong interest[s],” Kuretski , 755 F.3d at 937 (emphasis added), not merely Bahlul’s. Any disruption to normal appellate process, see Dis. Op. 20–22, 22 n.8, is “plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers” under Article III. Glidden Co. v. Zdanok , 370 U.S. 530, 536 (1962). To the extent the dissent insists that this court lacks the power to excuse forfeiture, see Dis. Op. 19–20; contra Nguyen v. United States

, 539 U.S. 69, 80 (2003), it relies on precedent applying Federal Rule of Criminal Procedure 52(b), which “governs on appeal from criminal proceedings . . . in district court,” Olano , 507 U.S. at 731; see Fed. R. Crim. P. 1 Advisory Comm. Note (“[T]hese rules are intended to govern proceedings in criminal cases triable in the United States District Court.”), whereas Bahlul is appealing the decision of the Court of Military Commission Review, and the statute governing such appeals, see 10 U.S.C. § 950g, contains none of the limitations the dissent labors to establish. The United States Court of Appeals for the Armed Forces has rejected the same argument in the court-martial context, affirming the decision of a lower tribunal to excuse forfeiture and conducting its own review de novo

. See United States v. Quiroz , 55 M.J. 334, 338 (C.A.A.F. 2001); 10 U.S.C. § 950f(d).

We turn to the merits of Bahlul’s structural Article III challenge to his conspiracy conviction.

II.

“Article III, § 1, of the C onstitution mandates that ‘[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such infe rior Courts as the Congress may from time to time ordain and establish.’” Stern , 131 S. Ct. at 2608. Section 2, clause 1, provides that “[t]he judicial Power

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shall extend” to, among others, “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” and “to Controversies to which the United States shall be a Party.” These cases and controversies include criminal prosecutions. See United States ex rel. Toth v. Quarles , 350 U.S. 11, 15 (1955); Ex parte Milligan , 71 U.S. (4 Wall.) 2, 121 (1866). Article III § 2 requires that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” U.S. C ONST



### . art. III, § 2, cl. 3. The Supreme Court, based on the text of Article III and its own precedent, has continued to reaffirm that

Article III is an inseparable element of the constitutional system of checks and balances that both defines the power and protects the independence of the Judicial Branch. Under the basic concept of separation of powers that fl ows from the scheme of a tripartite government adopted in the Constitution, the “judicial Power of the United States” can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.

Stern , 131 S. Ct. at 2608 (alterations and some internal quotation marks omitted) (quoting U.S. C ONST



### . art. III, § 1).

If a suit falls w ithin the judicial power, then “the responsibility for deciding that su it rests with Article III judges in Article III courts.” Id . at 2609. There are limited exceptions: Congress may create non-Article III courts to try cases in the District of Columbia and U.S. te rritories not within a state. See Palmore v. United States , 411 U.S. 389, 390–91 (1973); American Ins. Co. v. 356 Bales of Cotton , 26 U.S. (1 Pet.) 511, 546 (1828). It may assign certain criminal prosecutions to courts

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martial, see Dynes v. Hoover , 61 U.S. (20 How.) 65, 79 (1857), and military commissions, see Ex parte Quirin , 317 U.S. 1, 46 (1942). And it may assign to administrative agencies the adjudication of disputes involving “public rights” stemming from federal regulatory programs. See Stern , 131 S. Ct. at 2610; Murray’s Lessee v. Hoboken Land & Improvement Co. , 59 U.S. (18 How.) 272, 284 (1855). There are three types of military commissions. See, e.g.

, Hamdan , 548 U.S. at 595–98 (plurality op.), 683 (Thomas, J., dissenting). Bahlul was tried by a law of war military commission, Bahlul , 767 F.3d at 7, so the question is whether conspiracy falls within the Article III exception for that type of commission.

A. The Supreme Court addressed the contours of the exception to Article III for law of war military commissions in the seminal case of Ex parte Quirin , 317 U.S. 1 (1942). There, Nazi soldiers found out of uniform in the Un ited States during World War II were convicted of sabotage and other offenses by a law of war military commission. They challenged their convictions on the ground that Article III guaranteed them a right to trial by jury in civil court. The Supreme Court held that the law of war military commission had jurisdiction to try “offense[s] against the law of war,” of which sabotage was one. Id. at 46. The Court explained that Article III § 2 was intended

to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like na ture as they might arise in the future, but not to bri ng within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right.

Id. at 39 (citation omitted). Given this “long-continued and

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consistent interpretation,” the Cour t stated “that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts.” Id. at 40. “[S]ince the foundi ng of our government” and continued in the Articles of War, Article III has been construed “as not foreclosing trial by milita ry tribunals, without a jury, of offenses against the law of war committed by enemies not in or associated with our Armed Forces.” Id. at 41.

In Quirin , the Supreme Court described the law of war as a “branch of international law,” 317 U.S. at 29, and defined “the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.” Id. at 27–28. The Court stated that Congress had

exercised its authority to define and punish offenses against the law of nations by sanctioning . . . the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.

Id. at 28. In addition to international precedents, see id . at 30 n.7, 31 n.8, 35 n.12, the Court also considered domestic precedents (during the American Revolution, the War of 1812, and the Mexican and Civil Wars, see id. at 31 nn.9 & 10, 42 n.14), but only as potential limits on the law of war. The Court explained:

We may assume that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be

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triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury.

Id . at 29 (citing, as an example of the latter, Ex parte Milligan

, 71 U.S. (4 Wall.) 2 (1866)). Thus, “our courts” may recognize fewer law of war offenses than other countries’ courts, whether because they disagree about the content of international law or because of independent constitutional limitations. In the same vein, the Supreme Court recognized that Congress had “adopt[ed] the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts.” Id. at 30. The Court in Hamdan likewise treated “the American common law of war” as a source of constraint, not expansion. 548 U.S. at 613.

The Supreme Court has adhered to Quirin ’s understanding of the meaning of the “law of war” for over seventy years. In Application of Yamashita , 327 U.S. 1 (1946), the Court reaffirmed Quirin ’s “governing principles,” id . at 9, and its statement that Congress had exercised its power to “define and punish Offenses against the Law of Nations, of which the law of war is a part,” id. at 7 (alterations omitted) (citing U.S. C ONST



### . art. I, § 8, cl. 10). The Court held that the offenses there, stemming from the commanding general’s breach of duty to protect civilian populations and prisoners of war against atrocities committed by troops under his command, were “recognized in international law as violations of the law of war.” Id. at 14. To determine the content of the law of war, the Court looked to international sources, id. at 14–16, and it concluded that those sources alone “plain ly imposed on petitioner . . . an affirmative duty” that he had violated. Id. at 16. Having established that the charged offenses were violations of the international law of war, the Court mentioned two domestic field

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orders, but only to confirm domestic recognition of the duty imposed by the Hague and Geneva Conventions. See id. at 16 & n.3. Again, in Johnson v. Eisentrager , 339 U.S. 763 (1950), the Supreme Court looked only to international law sources to determine whether the charged offe nse, “[b]reach of the terms of an act of surrender,” was a “war crime.” Id. at 787–88 & n.13. More recently, in Hamdan , the Supreme Court reaffirmed Quirin ’s principle that the “law of war” means “the body of international law governing armed conflict.” 548 U.S. at 641 (Kennedy, J., concurring in part); id. at 603 (plurality op.) (quoting Quirin , 317 U.S. at 30, 35–36).

The Supreme Court’s reason in Quirin for recognizing an exception to Article III — that international law of war offenses did not entail a right to trial by jury at common law, 317 U.S. at 40–41 — does not apply to conspiracy as a standalone offense. The Court in Quirin held that the international law of war offense of unlawful belligerency was triable by law of war military commissions. 317 U.S. at 36, 46. Although the Court had no occasion to speak more broadly about whether other offenses came within the Article III exception, its reasoning precludes an Article III exception for conspiracy, which did entail a right to trial by jury at common law. In Callan v. Wilson , 127 U.S. 540 (1888), cited in Quirin , 317 U.S. at 39, the Court pointed to authorities “sufficient to show” that “the nature of the crime of conspiracy at common law . . . [was] an offense of a grave character, affecting the public at large,” such that a person so charged could not be tried without a jury, see Callan

, 127 U.S. at 556. The reasoning in Quirin also counsels against expanding the exception beyond international law of war offenses. Stating that “[f]rom the very beginning of its history th[e] Court has recognized and a pplied the law of war as [being] part of the law of nations,” Quirin , 317 U.S. at 27, the Court explained that some offenses may not be triable by military commission because “they are not recognized by our courts as

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violations of the law of war,” id. at 29. No subsequent Supreme Court holding suggests that law of war military commissions may exercise jurisdiction over offenses not recognized by the “law of war” as defined in Quirin

.

B. The parties agree that Bahlul was tried by a law of war military commission that had jurisdiction to try charges for offenses against the law of war as defined in Quirin . The government concedes that conspiracy is not a violation of the international law of war. See U.S. Appellee’s Br. to the En Banc Court at 34 (July 10, 2013). The que stion, therefore, is whether a law of war military commission may try domestic offenses — specifically conspiracy — without intruding on the judicial power in Article III.

The government insists that the Article III exception identified in Quirin is not limited to international law of war offenses because “the sabotage offense at issue in Quirin

— which the Court viewed as akin to spying — is not and has never been an offense under the interna tional law of war.” Appellee’s Br. 54. Yet the Supreme Court in Quirin concluded otherwise. It looked to “authorities on Intern ational Law” who “regarded as war criminals” saboteurs who passed behind enemy lines without uniform. 317 U.S. at 35 & n.12. It relied on international sources to establish that the offense was recognized “[b]y universal agreement and practice.” Id. at 30 & n.7, 31 n.8, 35 n.12. And it quoted language from early statutes and military tribunal proceedings where spying was identified as punishable by military tribunal under the “law and usage of nations.” Id. at 31 n.9, 41. The government points to scholarly criticism of the Court’s conclusion, see Appellee’s Br. 32, but this court is bound by the Supreme Court’s analysis in Quirin , which was premised on sabotage being an international offense. See Quirin , 317 U.S. at 35–36.

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Alternatively, the government maintains that even if Quirin did not extend the Article III exception to domestic offenses, historical practice demonstrates that it has been so extended. See Appellee’s Br. 20, 31–39. The Supreme Court, however, when relying on historical practice to analyze the separation of powers, has required much more evidence of a settled tradition than the government has identified. For instance, in Myers v. United States , 272 U.S. 52, 175 (1926), the Court held, upon reviewing more than seven decades in which Presidents had continuously removed Executive Branch officers without congressional involvement, that Congress lacked authority to restrict the President’s removal power. In United States v. Curtiss-Wright Export Corp. , 299 U.S. 304 (1936), the Court rejected, in view of an “unbroken legislative prac tice which has prevailed almost from the inception of the national government to the present day,” the argument that a joint resolution of Congress authorizing the President to determine whether to embargo the sale of arms and munitions to be lligerents in a foreign war was an unlawful delegation of legislative power. Id. at 322. Recently, in National Labor Relations Board v. Noel Canning

, 134 S. Ct. 2550 (2014), the Court defined the scope of the President’s authority under the Recess Appointments Clause, U.S. C ONST



### . art. II, § 2, cl. 3, based on a lengthy and dense historical practice. Upon iden tifying “thousands of intra-session recess appointments” and noting that “Presidents since Madison have made many recess appointments filling vacancies that initially occurred prior to a recess,” id. at 2562, 2571, the Court concluded that the Clause authorized those types of appointments. By contrast, where the Court found only a handful of instances in which a President had made a recess appointment during an inter-session recess lasting less than ten days, the Court held that those recesses were “presumptively too short to fall within the Clause.” Id. at 2567.

The history on which the government relies fails to

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establish a settled practice of trying non-international offenses in law of war military commissions. The longstanding statutes conferring military jurisdiction over charges of spying and aiding the enemy do not, as the government maintains, demonstrate that domestic offenses come within the Article III exception. The Congresses that enacted those stat utes viewed those offenses as punishable under the international law of war. The 1806 statute “imposed the death penalty on a lien spies ‘according to the law and usage of nations, by sentence of a general court martial.’” Quirin , 317 U.S. at 41 (quoting Ac t of Congress of Apr. 10, 1806, 2 Stat. 371). A 1776 Resolution adopted by the Continental Congress contained a nearly identical provision. Id. at 41 & n.13 (citing Edmund M. Morgan, Court-Martial Jurisdiction over Non-Military Persons Under the Articles of War , 4 Minn. L. Rev. 79, 107–09 (1920) (quoting Resolution of Aug. 21, 1776, 1 J OURNALS OF 

### C ONGRESS 

### 450)). In 1865, the Attorney General of the United States, James Speed, concluded in a formal opinion that “to act as spy is an offence against the laws of war,” and that “every lawyer knows that a spy was a well-known offender under the laws of war.” Military Commissions , 11 Op. Att’y Gen. 297, 312, 313 (1865). The oftcited William Winthrop, the “Blackstone of Military Law,” Hamdan, 548 U.S. at 597 (plurality op.) (quoting Reid, 354 U.S. at 19 n.38 (plurality op.)), reached the same conclusion. See W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### 769–70 (2d ed. 1920). Even authority relied upon by the government indicates that during the early Republic spies were considered “war criminals.” See Appellee’s Br. 31–32 (quoting 2 L. Oppenheim, I NTERNATIONAL 

### L AW 

### 287 (4th ed. 1926)).

But even if spying and aiding the enemy were not international offenses, their historical pedigrees stand in marked contrast to that of conspiracy. Both of those offenses have been subject to military jurisdiction since the ratification of the Constitution. See Quirin , 317 U.S. at 41; Act of Apr. 10, 1806,

### 18

2 Stat. 359, 371. Congress has r eenacted the spying and aiding the enemy statutes on multiple occasions, see, e.g. , Act of June 4, 1920, Pub. L. No. 66-242, 41 St at. 759, 804; Act of Aug. 29, 1916, Pub. L. No. 64-242, 39 Stat. 619, 663; Act of Mar. 3, 1863, 12 Stat. 731, 737, and scores of law of war military tribunals have tried the offenses, see Quirin , 317 U.S. at 42 n.14. When analyzing separation-of-powers challenges, the Supreme Court has explained, “the practical construction of the [C]onstitution, as given by so many acts of [C]ongress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land.” Marshall Field & Co. v. Clark , 143 U.S. 649, 691 (1892); see Mistretta v. United States , 488 U.S. 361, 401 (1989); Stuart v. Laird , 5 U.S. (1 Cranch) 299, 309 (1803).

The history of inchoate conspiracy being tried by law of war military tribunals is thin by comparison and equivocal at best. The government has identified only a handful of ambiguous examples, and none in which an inchoate conspiracy conviction was affirmed by the Judicial Branch. The examples are unpersuasive in themselves and insufficient to establish a longstanding historical practice.

First, although the charges against the Lincoln assassins referred to conspiracy, the specifications listed the elements of the completed offense. See J. Holt & T. Ewing, C HARGE AND 

### S PECIFICATION 

### A GAINST 

### D AVID 

### E. H EROLD 

### , ET AL 

### . 3 (1865) (Petr.’s. Supp. App’x 77–78); see also Hamdan , 548 U.S. at 604 n.35 (plurality op.); id. at 609. The Attorney General’s formal opinion in 1865 described the charge as “the offence of having assassinated the President.” 11 Op. Att’y Gen. at 297; see id. at 316–17. At the time, it was unclear that conspiracy could even be charged separately from the object offense, once completed. See Iannelli v. United States , 420 U.S. 770, 781 & n.13 (1975)

### 19

(citing Hampton L. Carson, The Law of Criminal Conspiracies and Agreements as Found in the American Cases

, in R. Wright, T HE 

### L AW OF 

### C RIMINAL 

### C ONSPIRACIES AND 

### A GREEMENTS 

### 191 (1887)). When Congress first enacted a conspiracy statute in 1867, the offense carried only a two-year penalty. See Act of Mar. 2, 1867, 14 Stat. 471, 484.

Because of conspiracy’s uncertain legal status at the time, the dissent’s theory that “[t]he circumstances surrounding the Lincoln assassination” indicate that “the criminal defendants could only have been charged with conspiracy,” Dis. Op. 62–63 (emphasis in original), is mere speculation, especially in view of the contrary contemporary analysis by the Attorney General. See 11 Op. Att’y Gen. at 297, 316–17. Moreover, Winthrop noted that the Lincoln assassins’ tribunal was a mixed martial law and law of war military commission. See W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 839 & n.5; cf. id. at 842. The dissent appears to disagree with Winthrop (on whom it otherwise relies,

see Dis. Op. 54, 59–61, 67) regarding the jurisdictional basis for the assassins’ tribunal. Compare id. at 63–64, with W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 839 & n.5. The dissent further ignores Winthrop’s explanation that conspiracy was a “civil crime” or “crime agai nst society” and not a law of war offense. W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 842. Where Winthrop listed the la w of war violations that had “principally” been charged in U.S. military commissions, conspiracy was not among them. See id. at 839–40. In response, the dissent cites Milligan , 71 U.S. at 127, for the proposition that military tribunals cannot exercise martial law jurisdiction unless the civil courts are closed, see Dis. Op. 64, even though Milligan was decided after the Lincoln assassins’ prosecution. The unreported district court opinion in Ex parte Mudd , 17 F. Cas. 954 (1868), hardly strengthens the dissent’s position, see Dis. Op. 64 n.21; the district court described the offense as “assassination” and only used “conspiracy” in the same terms as

### 20

the charging document, while distinguishing Milligan based on the state of war in th e Capital, not based on the nature of the offense. Mudd , 17 F. Cas. at 954.

Second, although the charges against the Nazi saboteurs in Quirin included conspiracy to commit the charged offenses, the Court upheld the jurisdiction of the law of war military commission only as to the charge of sabotage and did not mention the conspiracy charge in its analysis. See Quirin , 317 U.S. at 46. Similarly, although William Colepaugh was convicted of sabotage and spying, in addition to conspiracy to commit those offenses, the U.S. Court of Appeals for the Tenth Circuit affirmed the jurisdiction of the military tribunal in view of the law of war acts of bellig erency without addressing the conspiracy charge. See Colepaugh v. Looney , 235 F.2d 429, 431–32 (10th Cir. 1956). Moreover, in both Quirin and Colepaugh , the charged conspiracies involved completed offenses. By contrast, none of the underlying overt acts for Bahlul’s conspiracy conviction was a law of war offense itself, and the government declined to charge him with vicarious liability under Pinkerton v. United States , 328 U.S. 640 (1946), or with joint criminal enterprise, see Bahlul , 767 F.3d at 38–39 (Rogers, J., concurring in the judgment in part and dissenting) (citing U.S. Appellee’s Br. to the En Banc Court at 47 (Jul. 10, 2013)).

Third, the government asserts that “during the Civil War, defendants were regularly convicted of conspiracies that were charged as unconsummated offenses,” Appellee’s Br. 37, but it cites only a single instance. Col. George St. Leger Grenfel was convicted by a military tribunal of conspiracy to free prisoners of war in Chicago and to destroy that city. See G ENERAL 

### C OURT 

### -M ARTIAL 

### O RDERS 

### No. 452 (Aug. 22, 1865). As Bahlul points out, however, Grenfel’s commission, like that of the Lincoln assassins, was a “hybrid” commission exercising

### 21

jurisdiction based in part on the Pr esident’s declaration of martial law. See Reply Br. 18 (citing Hamdan , 548 U.S. at 609 n.37 (plurality op.); W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 839 n.5); S. Starr, C OLONEL 

### G RENFELL 

### ’ S 

### W ARS 

### : T HE 

### L IFE OF
A 

### S OLDIER OF 

### F ORTUNE 

### , 5, 219 (1971) (cited in Appellee’s Br. 37). In defending the Grenfel commission’s jurisdiction, the prosecution relied on the fact that “martial law obtained throughout the United States and the Territories during the continuance of the [Civil] [W]ar.” Judge Advocate’s Reply, Courtroom, Cincinnati, Ohio, Jan. 17, 1865, United States v. Walsh, et al.

, reprinted in H. E XEC



### . D OC



### . N O



### . 50, 39th Cong., 2d Sess., at 20. The Grenfel commission, like the Lincoln assassins’ commission, “is at best an equivocal” case. Hamdan , 548 U.S. at 604 n.35 (plurality op.).

The historical examples identified by the government thus fall far short of what the Suprem e Court has required when using historical practice to interpret the constitutional separation of powers. Our dissenting collea gue adds only the orders of General MacArthur and General Wedemeyer from the end of World War II and the Korean Conflict. See Dis. Op. 66 & nn.22–23. But the en banc court dismissed the persuasive force of such military orders for lack of high-level Executive Branch consultation. See Bahlul , 767 F.3d at 25 n.16. And during the Korean Conflict there apparently were no trials conducted by United Nations Military Commissions. See Jordan J. Paust et al., I NTERNATIONAL 

### C RIMINAL 

### L AW 

### : C ASES AND 

### M ATERIALS 

### 724 (1996).

Finally, the government asserts that any “enemy belligerent” can be tried by a military commission regardless of the offense. Appellee’s Br. 56. But the Supreme Court has focused on “the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they

### 22

are charged.” Quirin , 317 U.S. at 29 (emphasis added). Thus, in Quirin

, the Court “assume[d] that there are acts ” that could not be tried by military commission “because they are of that class of offenses constitutionally triable only by a jury.” Id. (emphasis added). Likewise, in Yamashita , the Court “consider[ed] . . . only the lawful power of the commission to try the petitioner for the offense charged.” 327 U.S. at 8 (emphasis added). In Hamdan , the Court explained that the status of the offender (being a member of a foreign armed force) and the nature of the offense were both necessary conditions for the exercise of jurisdiction by a law of war military commission. See Hamdan , 548 U.S. at 597–98 (plurality op.) (citing W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 836–39); accord id. at 2826 (Thomas, J., dissenting).

C. This court need not decide the precise relationship between Bahlul’s Article I and Article III challenges. In Quirin , the Supreme Court’s Article III analysis did not look to Article I at all. See Quirin , 317 U.S. at 38–46. In some contexts, however, Article III exceptions have turned on the extent of congressional
power. See Palmore v. United States , 411 U.S. 389, 402–04 (1973); Kinsella v. United States ex rel. Singleton , 361 U.S. 234, 236–38 (1960). Upon examining the government’s Article I contentions, we conclude that they do not call into question the conclusion that the Article III exception for law of war military commissions does not extend to the trial of domestic crimes in general, or inchoate conspiracy in particular.

1. The government maintains that the war powers in Article I vest Congress with broad authority to subject war-related offenses to the jurisdiction of military commissions. See Appellee’s Br. 27–30. The war powers include the power to “define and punish . . . Offences against the Law of Nations,” U.S. C ONST 

### . art. I, § 8, cl. 10, “declare War,” id. § 8, cl. 11,

### 23

“raise and support Armies,” id. § 8, cl. 12, “provide and maintain a Navy,” id. § 8, cl. 13, “make Rules for the Government and Regulation of the land and naval Forces,” id. § 8, cl. 14, “provide for calling forth the Militia,” id. § 8, cl. 15, and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” id. § 8, cl. 18. Because the war powers contain no textual limitation based on international law, the government concludes there is no such restriction on military commission jurisdiction. See Appellee’s Br. 29–30. In the government’s view, the war powers support military jurisdiction over any offense “committed by an enemy belligerent during and in relation to an armed conflict with the United States [that] . . . has a palp able effect on the nature of that conflict.” Oral Arg. Tr. 49.

The Supreme Court has looked to the Define and Punish Clause in determining whether Congress may designate particular offenses within the jurisdiction of a law of war military commission. The Court in Quirin

, Yamashita , and Hamdan did look to the war powers in discussing congressional authority to establish military commissions. See Hamdan , 548 U.S. at 591 (plurality op.); Yamashita , 327 U.S. at 12; Quirin

, 317 U.S. at 26; see also W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 831 (stating that Congr ess’s power “to ‘declare war’ and ‘raise armies’” provided the “original sanction” for military commissions). But in addressing Congress’s authority to confer jurisdiction over particular offenses, the Court has consistently looked to the Define and Punish Clause alone. See Hamdan , 548 U.S. at 601–02 (plurality op.); Yamashita , 327 U.S. at 7; id. at 26 (Murphy, J., dissenting); Quirin , 317 U.S. at 28. In Yamashita , the Court emphasized the distinction, explaining that “the [military] commission derives its existence ” from the war powers, 327 U.S. at 12 (emphasis added), but that its jurisdiction over specific offenses comes from Congress’s “exercise of the power conferred upon it by Article I, § 8, Cl. 10

### 24

of the Constitution to ‘define a nd punish * * * Offenses against the Law of Nations * * *,’ of whic h the law of war is a part.” Id. at 7. Winthrop endorsed this dis tinction in stating that Civil War-era legislation subjecting “spies and guerillas” to military jurisdiction “may be regarded as deriving its authority from” the Define and Punish Clause. W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 831.

In applying the Define and Punish Clause, the Supreme Court long ago cautioned that “[w] hether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by [C]ongress.” United States v. Arjona , 120 U.S. 479, 488 (1887). As noted, the government has conceded that conspiracy is not an international war crime. Notwithstanding the atrocities at issue, the International Military Tribunal at Nuremberg considered and rejected conspiracy to commit war crimes as an international law of war offense. See 22 T RIAL OF THE 

### M AJOR 

### W AR 

### C RIMINALS 

### B EFORE THE 

### I NTERNATIONAL 

### M ILITARY 

### T RIBUNAL 

### : N UREMBERG 

### , 14 N OVEMBER 

### 1945–1 O CTOBER 

### 1946, at 469 (1948). Conspiracy to commit war crimes is included neither in the major treaties on the law of war, 1 

### nor in the jurisdiction of

1 See, e.g.

, Protocol Additional to the Geneva Conventions of 12August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts , June 8, 1977, 1125 U.N.T.S. 609; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts , June 8, 1977, 1125 U.N.T.S. 3; Geneva Convention Relative to the Protection of Civilian Persons in Time of War , Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the Treatment of Prisoners of War , Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea , Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention for the Amelioration of the Condition of the Wounded and

### 25

modern war crimes tribunals. 2 

### Congress cannot, pursuant to the Define and Punish Clause, d eclare an offense to be an international war crime when the international law of war concededly does not. See United States v. Furlong , 18 U.S. (5 Wheat.) 184, 198 (1820). The exceptions — conspiracy to commit genocide and common plan to wage aggressive war, see Hamdan , 548 U.S. at 610 (plurality op.) — are not at issue here, for Bahlul was charged with neither . In light of the international community’s explicit and repeated rejection of conspiracy as a law of war offense, we are puzzled by our dissenting colleague’s statement that “[t]he international community does recognize that Bahlul violated the principl es of the law of nations,” Dis.

Sick in Armed Forces in the Field , Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention Respecting the Laws and Customs of War on Land , Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; Convention with Respect to the Laws and Customs of War on Land , July 29, 1899, 32 Stat. 1803, 1 Bevans 247.

2 See Statute of the Special Court for Sierra Leone , Jan. 16, 2002, 2178 U.N.T.S. 138; Rome Statute of the International Criminal Court

, July 17, 1998, 2187 U.N.T.S. 90; Statute of the International Tribunal for Rwanda , adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602; Statute of the International Tribunal for the Former Yugoslavia , adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192. Some modern tribunals recognize war cr imes liability through participation in a joint criminal enterprise, see Prosecutor v. Milutinovic , Case No. IT–99–37–AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, ¶ 26 (Int'l Crim. Trib. for the Former Yugoslavia, Appeals Chamber, May 21, 2003); Rwamakuba v. Prosecutor , Case No. ICTR–98–44–AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, ¶ 30 (Oct. 22, 2004), but the prosecutor at Bahlul’s military commission withdrew that charge against him, see Trial Tr. 110, 881 (cited in Bahlul , 767 F.3d at 39, 40–41 (Rogers, J., concurring in the judgment in part and dissenting)).

### 26

Op. 31 (internal quotation marks and italics omitted), and by its reference to “the international community’s agreement that those who conspire to commit war crimes can be punished as war criminals,” id. at 53. There is no such “agreement.” The dissent offers nothing to support this claim.

Our dissenting colleague also maintains that this court must accord Congress “‘extraordinary deference when it acts under its Define and Punish Clause powers.’” Dis. Op. 34 (quoting Bahlul , 767 F.3d at 59 (Brown, J., concurring in the judgment in part and dissenting in part)). This court has no occasion to decide the extent of that defe rence because the government has never maintained that Congress defined conspiracy in the 2006 MCA as a violation of the law of nations. The legislative history of the 2006 MCA is not to the contrary. See id. at 46 n.17. In maintaining otherwise, the dissent confuses acting pursuant to the Define and Punish Clause w ith identifying the content of the law of nations, see id. at 45–47; Congress purported to do the former, not the latter. In Bahlul’s case, the “law of nations” is not “too vague and deficient to be a rule,” id. at 32 (quotation marks omitted); to the contrary, it quite clearly does not view conspiracy to be an independent war crime, as the government has conceded.

To the extent our colleague w ould interpret the Define and Punish Clause to confer open-ended congressional authority to
create new war crimes, see Dis. Op. 38–43, the Supreme Court has rejected such an approach. In Furlong , 18 U.S. (5 Wheat.) 184, the Court explained with rega rd to piracy, the other object of the Define and Punish Clause: “If by calling murder piracy
, [Congress] might assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought within their power by the same device?” Id . at 198 (emphasis in original). The same reasoning applies to “Offenses against the Law of Nations,” the other object of the

### 27

Define and Punish Clause. U.S. C ONST 

### . art. I, § 8, cl. 10. Congress can neither define as piracy a crime that is clearly not piracy, nor define as a law of nations offense a crime that is avowedly not a law of nations offe nse. In other contexts as well, the Supreme Court has rejected the limitless form of congressional power the dissent proposes. Cf. City of Boerne v. Flores , 521 U.S. 507, 529 (1997). Contrary to our dissenting colleague, international law itself affords no limit because it does not purport to identify which non-international offenses can and cannot be treated as domestic war crimes; the dissent points to no offenses whose trial by military commission are “inconsistent with” or not “permit[ted]” by inte rnational law. Dis. Op. 53, 38 (italics omitted). In urging such a limitation, however, the dissent does reveal one shared premise: that the content of international law constrains congressional authority under the Define and Punish Clause. According to the dissent, congressional action under the Clau se must be “consistent with international law,” id. at 47, such that Congress may only “track somewhat ahead of the international community,” id. at 43 (emphasis added). Thus, despite some rhetorical protestations to the contrary, see id. at 1, 42, 73, the dissent’s disagreement is not about whether international law constrains congressional authority, only to what extent

.

The dissent’s reliance on Yamashita as support for its understanding of the Define and Punish Clause, see Dis. Op. 35–37, is misplaced. In Yamashita

, the Supreme Court did not address the nature of Define and Punish Clause authority at all, because Congress had not defi ned any specific offenses. See Yamashita , 327 U.S. at 7. The Court therefore had to undertake its own analysis of international law, and it concluded that the Hague and Geneva Conventions “plainly imposed on petitioner” a duty that he had violated. Id. at 16. It is th erefore difficult to understand how Yamashita affects the type of deference owed to Congress one way or the other.

### 28

2. Nor does the Necessary and Proper Clause allow Congress to do what its express powers do not. See Toth , 350 U.S. at 21–22. The government maintains that even if Congress’s authority arose only under the Define and Punish Clause, “Congress is not restricted under that Clause only to criminal offenses that are violations of international law.” Appellee’s Br. 43. “Rather, Congress may, under the Necessary and Proper Clause, proscribe conspiracy to commit war crimes, such as terrorist attacks agains t civilians, that are themselves violations of the law of nations as a necessary and proper implementation of its power and responsibility to prevent and punish such violations.” Id. The Supreme Court has adopted a different view.

In Toth , 350 U.S. at 22, the Supreme Court explained that it was “not willing to hold that power to circumvent [jury] safeguards should be inferred through the Necessary and Proper Clause.” It described the “gr eat difference between trial by jury and trial by selected members of the military forces,” id. at 17, and explained that “[t]here are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution,” id. at 22. In Singleton , the Court rejected expansion of military jurisdiction through the Necessary and Proper Clause because “[t]his Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the safeguards of Article III and the Fifth and Sixth Amendments.” 361 U.S. at 246. The Court explained: “If the exercise of the power is valid it is because it is granted in Clause 14 [the Make Rules Clause], not because of th e Necessary and Proper Clause.” Id. at 247. “We are therefore constrained to say that since this Court has said that the Necessary and Proper Clause cannot expand Clause 14 so as to include prosecution of civilian dependents for capital crimes, it cannot expand Clause 14 to include prosecution of them for noncapital offenses.” Id. at 248.

### 29

As the plurality in Reid emphasized, “the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law.” 354 U.S. at 21; see Hamdan , 548 U.S. at 590 (plurality op.). Consequently, “the Necessary and Proper Clause cannot operate to extend military jurisdiction to any group of persons beyond that class described in” an enumerated Article I power. Reid , 354 U.S. at 20–21 (plurality op.). “Under the grand design of the Constitution civilian courts are the normal repositories of power to try persons charged with crimes against the United States.” Id. at 21.

The government’s response is that Congress may enact legislation “necessary to comply with our nation’s international responsibilities.” Appellee’s Br. 45. In Arjona , 120 U.S. at 484, the Supreme Court upheld a counterfeiting prohibition because “[t]he law of nations requires every national government . . . to punish those who, within its own jurisdiction, counterfeit the money of another nation.” The Court observed that without the criminal statute, the United Stat es would “be unable to perform a duty which they may owe to a nother nation, and which the law of nations has imposed on them as part of their international obligations.” Id. at 487. Here, the government points to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War , Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (“ Geneva IV ”), which prohibits “[c]ollective penalties and likewise all measures of intimidation or of terrorism.” Id. art. 33. The Convention requires signatories to “undertake to enact any legislatio n necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention,” id. art. 146, which include the “willful killing . . . of a protected person,” id. art. 147, defined as “those who . . . find themselves, in case of a c onflict or occupation, in the hands

### 30

of a Party to the conflict or O ccupying Power of which they are not nationals,” id. art. 4. Each signatory “shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention.” Id. art. 146.

Even if Congress has authority to criminalize noninternational offenses pursuant to the Define and Punish Clause, as supplemented by the Necessary and Proper Clause, the government fails to explain why such congressional power to prohibit conduct implies the power to establish military jurisdiction over that conduct. Military jurisdiction over the offenses that the Supreme Court has previously upheld under the Define and Punish Clause — such as spying and sabotage — have a textual basis in the Cons titution: The “Law of Nations,” U.S. C ONST 

### . art. I, § 8, cl. 10, itself makes those offenses “cognizable by [military] tribunals.” Quirin , 317 U.S. at 28; see id. at 41 & n.13; Act of Apr. 10, 1806, 2 Stat. 359, 371; 11 Op. Att’y Gen. at 316; W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 769. Court-martial jurisdiction similarly has a textual basis in the Constitution, which authorizes Congress to “make Rules for the Government and Regulation of the land and naval Forces,” U.S. C ONST



### . art. I, § 8, cl. 14, and exempts those offenses from trial by jury, see id. amend. V. The sabotage offense in Quirin was subject to military jurisdiction based on “a construction of the Constitution which has been followed since the founding of our government.” 317 U.S. at 41. Military jurisdiction over conspiracy, by c ontrast, has neither an express textual basis nor an established historical tradition.

The government maintains that under the Necessary and Proper Clause, “[i]f commission of the substantive crime that is the conspiracy’s object would be within the scope of permissible congressional regulation, then so is the conspiracy.” Appellee’s Br. 45. But again, Bahlul’s Article III challenge is not that Congress lacks authority to prohibit his conduct; rather, he

### 31

challenges Congress’s authority to confer jurisdiction in a military tribunal. Absent a textual or historical basis for prosecuting conspiracy as a standalone offense in a law of war military commission, the government’s position is confounded by the Supreme Court’s repeated reluctance to extend military jurisdiction based on the Necessary and Proper Clause. See, e.g., Singleton , 361 U.S. at 246–48; Reid , 354 U.S. at 20–21 (plurality op.); Toth , 350 U.S. at 21–22. The cases on which the government relies, such as Callanan v. United States , 364 U.S. 587, 593–94 (1961), and United States v. Feola , 420 U.S. 671, 694 (1975), involve criminal conspiracy prosecutions in civil
courts. See Appellee’s Br. 45–46 (also citing United States v. Price , 265 F.3d 1097, 1107 n.2 (10th Cir. 2001); United States v. Jannotti , 673 F.2d 578, 591–94 (3d Cir. 1982)).

D. Before concluding we address some further flaws in our dissenting colleague’s opinion.

First, the dissent relies on inapposite authorities regarding the source of congressional authority for law of war military commissions. Its citations refer to military commissions exercising jurisdiction far beyond the law of war. Thus, in Ex parte Milligan , 71 U.S. 2 (1866), the four Justices cited by the dissent, see Dis. Op. 55, were discussing courts martial and military commissions whose jurisdiction was based on military government and martial law. See Milligan , 71 U.S. at 141–42 (Chase, C.J., concurring in the result); see generally Hamdan

, 548 U.S. at 595–98 (plurality op.), 683 (Thomas, J., dissenting); Bahlul , 767 F.3d at 7. The constitutional authority for those commissions, whose jurisdiction may include domestic crimes, see Hamdan , 548 U.S. at 595–96 (plurality op.); Bahlul , 767 F.3d at 7, does not extend to law of war commissions. The dissent’s reliance on Madsen v. Kinsella , 343 U.S. 341 (1952);

see Dis. Op. 55, 58, 61, is likewise misplaced; that case involved

### 32

a military-government commission, not a law of war military commission. Madsen , 343 U.S. at 343–44, 345–48. And the dissent’s reliance on Winthrop’s statement that “in general, it is” the war powers “from which the military tribunal derives its original sanction,” Dis. Op. 60 (alterations omitted) (quoting W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 831), ignores both that Winthrop was discussing all three kinds of military commission, stating the commission’s “authority is thus the same as the authority for the making and waging of war and for the exercise of military government and martial law,” and that Winthrop looked exclusively to the Define and Punish Clause as the source of authority for law of war commissions to try spying and aiding the enemy, see W. Winthrop, M ILITARY 

### L AW AND 

### P RECEDENTS 

### , at 831.

Second, the dissent maintains that if conspiracy does not fall within the Article III exception for law of war military commissions, then Bahlul’s convic tion must be affirmed under Schor ’s multi-factor balancing approach. See Dis. Op. 73–80. The Supreme Court has never suggested that an entire criminal adjudication outside an established Article III exception could ever satisfy the Schor analysis. The dissent cites Palmore to suggest otherwise, see id . at 72, but the Court conducted no balancing analysis in Palmore because the case involved a criminal adjudication within the established Article III exception for territorial courts. Palmore , 411 U.S. at 403; see Northern Pipeline , 458 U.S. at 55 & n.16 (plurality op.). But even accepting the dissent’s premise, its analysis fails on its own terms. Bahlul’s military commission is on the wrong side of nearly every balancing factor that the Supreme Court has applied.

With respect to what the disse nt characterizes as the “most important[]” factor, Dis. O p. 74, the 2006 MCA provides for appellate review “only with respect to matters of law, including

### 33

the sufficiency of the evidence to support the verdict,” 10 U.S.C. § 950g(d). Sufficiency review is “sharply limited,” Wright v. West , 505 U.S. 277, 296 (1992), and “very deferential[],” United States v. Harrison , 931 F.2d 65, 71 (D.C. Cir. 1991). This is exactly the type of limited judici al review the Supreme Court has repeatedly held offends Article III. See Stern

, 131 S. Ct. at 2611; Schor

, 478 U.S. at 853; Northern Pipeline , 458 U.S. at 85, 86 n.39 (plurality op.); id. at 91 (Rehnquist, J., concurring in the judgment); Crowell v. Benson , 285 U.S. 22, 57 (1932). The dissent pretends otherwise, glossing over the details of Schor and ignoring Stern and Northern Pipeline

. See Dis. Op. 74–76. In Stern , the Supreme Court faulted the bankruptcy statute for providing judicial review “only under the usual limited appellate standards,” which “require[d] marked deference to, among other things, the [tribunal’s] findings of fact.” 131 S. Ct. at 2611. The Court reached the same conclusion in Northern Pipeline , 458 U.S. at 85, 86 n.39 (plurality op.); id. at 91 (Rehnquist, J., concurring in the judgment). In Schor , the Court noted that “CFTC orders are [] reviewed under the same ‘weight of the evidence’ standard sustained in Crowell , rather than the more deferential [clearly erroneous] standard found lacking in Northern Pipeline .” 478 U.S. at 853. The “sufficiency of the evidence” standard in the 2006 MCA is more deferential than the “usual limited appellate standards” rejected in Stern and the “clearly erroneous” standard rejected in Northern Pipeline and Schor. Rather than addressing these holdings directly, the dissent relies on inapposite precedent involving (1) “adjunct” fact-finders within Article III courts, see Dis. Op. 75 (citing Crowell , 285 U.S. at 51); see also Stern , 131 S. Ct. at 2619; Northern Pipeline , 458 U.S. at 78 (plurality op.), (2) factual review in appeals from state cour ts and Article III district courts,

see Dis. Op. 75–76 (citing Jackson v. Virginia , 443 U.S. 307, 318–19 (1979); The Francis Wright , 105 U.S. 381, 386 (1881)), and (3) cases within the “public rights” exception to Article III, where there is no reason to apply a balancing analysis, see Dis.

### 34

Op. 76 (citing Estep v. United States , 327 U.S. 114 (1946)). No Article III issue was rais ed or addressed in Estep or Jackson

. Thus, the dissent’s “most important[]” factor — appellate review for legal error only, id. at 74 — is one the Supreme Court has expressly foreclosed.

In Sharif , where the Court upheld adjudication by bankruptcy courts outside the established Article III exception, the two necessary factors were the parties’ consent to the adjudication, and the fact that “Article III courts retain[ed] supervisory authority over the process.” Sharif , No. 13-935, slip op. at 12. Neither is true in Bahl ul’s case. First, the Court in Sharif emphasized that litigant consent has been a crucial factor in its prior decisions on non-Article III adjudication: In Schor

, the Court “[l]ean[ed] heavily on the importance of Schor’s consent.” Sharif , No. 13-935, slip op. at 9; see id. at 14 n.10. Subsequent decisions by the Supreme Court involving the Federal Magistrates Act “reiterated the importance of consent to the constitutional analysis.” Id. at 10. And in both Stern and Northern Pipeline , compliance with Article III “turned on” whether the litigant “truly consent[ed]” to the adjudication. Id. at 15 (internal quotation marks om itted). Bahlul plainly did not “consent” to his trial by military commission. As the en banc court observed, he “objected to the commission’s authority to try him” and “flatly refused to participate in the military commission proceedings,” even assuming his objections were “too general” to raise specific legal claims. Bahlul , 767 F.3d at 10 (internal quotation marks omitted); see Trial Tr. 96–97 (“Bahlul has made it very clear that he is boycotting and that he does not recognize this commission.”); contra Dis. Op. 74. Second, the Court in Sharif relied on the fact that bankruptcy judges are appointed, referred cases, allowed to keep cases, supervised, and removable by Article III judges, who thus retain “total control and jurisdiction” over bankruptcy adjudication. Sharif , No. 13-935, slip op. at 13 (internal quotation marks omitted); see id. at 3–4.

### 35

The Court expressly conditioned its holding on this level of “control by the Article III courts.” Id. at 12, 15. Nothing of the sort is true in Bahlul’s case. Military commissions under the 2006 MCA are independent of the Article III courts except for very limited appellate review.

Another factor the Supreme Court has considered is the “concern[] that drove Congress to depart from the requirements of Article III.” Schor , 478 U.S. at 851. In non-Article III adjudications upheld by the Supreme Court, Congress’s “concern” was the fact that an ostensibly “private” claim was so “closely intertwined with a federal regulatory program,” Granfinanciera, S.A. v. Nordberg , 492 U.S. 33, 54 (1989), that the program would be “confounded” without the ability to adjudicate that claim. Schor , 478 U.S. at 856; see Sharif , No. 13- 935, slip op. at 13; Stern , 131 S. Ct. at 2613–14; Thomas v. Union Carbide Agric. Products Co. , 473 U.S. 568, 593–94 (1985). Neither the government nor the dissent offer any reason to conclude that otherwise-valid military commission prosecutions will be “confounded” by the inability to prosecute non-law of war offenses.

Bahlul’s military commission fails a number of other Schor factors the dissent neglects to mention. The military commission resolves “all matters of fact and law in whatever domains of the law to which” a charge may lead. Stern , 131 S. Ct. at 2610 (internal quotation marks and alterations omitted). It “‘issue[s] final judgments, which are binding and enforceable,’” id. at 2610–11 (quoting Northern Pipeline , 458 U.S. at 85–86 (plurality op.)); see Schor , 478 U.S. at 853, and “subject to review only if a party chooses to appeal,” Stern , 131 S. Ct. at 2619. As for the “origins and importance of the right to be adjudicated,” Schor , 478 U.S. at 851, the right to “[f]reedom from imprisonment” is one of the oldest and most basic in our legal system. Zadvydas v. Davis , 533 U.S. 678, 690 (2001). The

### 36

circumstances of Bahlul’s prosecu tion thus could not be further from Schor . There, Congress added to an Article I tribunal otherwise within an established Article III exception the authority to adjudicate a closely intertwined common-law cause of action, only with the consent of the parties, without authority to issue final enforceable judgements, and with meaningful factual review on appeal. Here, in Bahlul’s case, Congress has created a standalone Article I tribunal to adjudicate his entire criminal case without his consent, with the ability to issue final enforceable judgments, and with almost no factual review on appeal.

If Bahlul’s military commission falls outside the historical Article III exception for law of war military commissions, then there is no question that it usurps “the essential attributes of judicial power.” Schor , 478 U.S. at 851 (internal quotation marks omitted). The Supreme Court unanimously agreed in Stern that “Congress may not vest in a non-Article III court the power to adjudicate, render fi nal judgment, and issue binding orders in [an adjudication of pr ivate rights], without consent of the litigants, and subject only to ordinary appellate review.” 131 S. Ct. at 2624 (Breyer, J., dissenting); id. at 2615 (majority op.); see Thomas , 473 U.S. at 584. The dissent struggles, unpersuasively, to avoid this conc lusion. It suggests that militarycommissions somehow do not raise the same separation-ofpowers concerns as bankruptcy courts, see Dis. Op. 79; contra Hamdan , 456 U.S. at 638 (Kennedy, J., concurring in part), even though bankruptcy judges are appointed, supervised, and removable by Article III courts, see Sharif , No. 13-935, slip op. at 13; Peretz v. United States , 501 U.S. 923, 938–39 (1991). It points to the established Article III exception for military commissions, see Dis. Op. 79–80, even though the analysis in Schor is premised on the adjudication being outside of such an exception, as the dissent elsewhere acknowledges, see id. at 71,

### 37

73, 80. The government, unsurprisingly, has barely presented any balancing analysis, see Appellee’s Br. 51.

III.

For more than seventy years the Supreme Court has adhered to the definition of the law of war articulated in Quirin , which the government concedes does not prohibit conspiracy. The government has failed to identify a sufficiently settled historical practice for this court to conclude that the inchoate conspiracy offense of which Bahlul was convicted falls within the Article III exception for law of war military commissions. Absent further guidance from the Supreme Court, this court must apply the settled limitations that Article III places on the other branches with respect to the “judicial Po wer of the United States.” U.S. C ONST



### . art. III, § 1.

Contrary to the government’s suggestion, vacating Bahlul’s inchoate conspiracy conviction does not “cast doubt on the constitutional validity of the most prominent military commission precedents in our nation’s history.” Appellee’s Br. 52. The Lincoln assassins and Colonel Grenfel were tried by mixed commissions, whose jurisdiction was based on martial law. The lawfulness of military commission jurisdiction over the charges against the Nazi saboteurs and Colepaugh was judicially upheld without having to reach th e conspiracy charges. Neither does our holding “inappropriately restrict Congress’s ability, in the absence of broad concurrence by the international community, to adapt the range of offenses triable by military commission in light of future ch anges in the practice of modern warfare and the norms that govern it.” Id. at 38. Military commissions retain the ability to prosecute joint criminal enterprise, aiding and abetting, or any other offenses against the law of war, however it may evolve. Congress retains the authority it has always had to proscribe domestic offenses

### 38

through the criminal law in the civil courts. The international law of war limits Congress’s au thority because the Constitution expressly ties that authority to “the Law of Nations,” U.S. C ONST



### . art. I, § 8, cl. 10.

Accordingly, we hold that Bahlul’s conviction for inchoate conspiracy by a law of war military commission violated the separation of powers enshrined in Article III § 1 and must be vacated. We need not and do not address Bahlul’s other contentions.

### 1

T ATEL 

### , Circuit Judge , concurring: Although I agree that al Bahlul’s conviction runs afoul of Article III of the Constitution, I write separately to explain why, having joined the en banc C ourt in upholding that conviction, I now join an opinion that invalidates it. I also wish to draw out a few points that are especially relevant to the separation

- of

- powers questions this case presents.

Sitting en banc , this Court decided last year that th e Ex Post Facto Clause does not prevent Congress from granting military commissions jurisdiction over the crime of conspiracy. We began by noting that in the months leading up to the September 11th attacks, when al Bahlul committed his crimes, federal law gave military commissions jurisdiction over “offenders or offenses that by statute or by the law of

war may be tried by military commissions.” 10 U.S.C. § 821 (emphasis added). Because no statute on the books in 2001 allowed military commissions to try con spiracy, the en banc C ourt needed to determine whether that crime qualified as a “law of war” offense at that time and was thus triable by military commission. If so, the Court observed, al Bahlul’s ex post facto argument would necessarily fail. Reviewing much of the same history and case law before us now, the en banc Court was unable to conclude that “conspiracy was not already triable by law

- of

- war military commissions” in 2001. Al Bahlul v. United States , 767 F.3d 1, 18 (D.C. Cir. 2014).

So why the diff erent result here? The answer is the standard of review. The en banc C ourt came down the way it did, and I voted the way I did, because al Bahlul had forfeited his ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the C ourt concluded that it was “not ‘obvious’” that conspiracy was “not . . . triable by law

-

### 2

of

- war military commissions” at the time al Bahlul committed his crimes. Id. at 27.

The government insist s that al Bahlul also failed to raise his Article III argument below

. B ut even if that were true, the Article III claim is structural, see Reid v. Covert , 354 U.S. 1, 21 (1957) ( “E very extension of military jurisdiction is an encroachment on the jurisdicti on of civil courts

. . . . ”), and the Supreme Court held in Commodities Futures Trading Commission v. Schor that structural claims cannot be waived or forfeited

, s ee 478 U.S. 833, 850

– 51 (1986) (“ T o the extent that [a] structural principle is implicated in a given case

, the parties cannot by consent cure the constitutional difficulty

. ”)

. This Court followed suit in Kuretski v. Commissioner of Internal Revenue Service , holding that “the Supreme Court has recognized an exception” to the “general rule” that a party may forfeit an argument it fails to raise below: we may nonetheless “hear ‘ a constitutional challenge ’ . . . if the

‘ alleged defect . . . goes to the validity of the . . . proceeding. ’ ” 755 F.3d 929, 936 (D.C. Cir. 2014) (quoting Freytag v. Commissio ner of Internal Revenue Service , 501 U.S. 868, 879 (1991)). The Supreme Court, moreover, recently reaffirmed Schor ’s holding in Wellness International Network, Ltd. v. Sharif : “a litigant’s waiver of his ‘personal right’ to an Article III court is not alwa ys dispositive[;] . . . [t]o the extent that [a] structural principle is implicated in a given case . . . the parties cannot by consent cure the constitutional difficulty.” 575 U.S. __ (2015) , slip op. at 9 (quoting Schor , 478 U.S. at 850

– 51 ) ; see id.

, dis senting op. at 12 (Roberts, C.J.) (“nobody disputes that Schor forbids a litigant from consenting to a constitutional violation when the structural component of Article III is implicated”) (internal quotation marks omitted); Op. at 6

– 7

. If, as the dissent argues , the Court instead intended to hold that structural claims are

now forfeitable, see Dissenting Op. 14

– 15, thus overruling

### 3
decades of precedent and requiring us to depart from our own case law

, then I suspect it would have made that point clear

.
Und er these circumstances, the en banc C ourt’s conclusion that it was neither “clear” nor “obvious”

— that is, not “plain”

— that the law of war is purely international cannot determine the outcome of this case. However unclear the law and the evidence, we must d ecide not whether the error below was plain, but whether there was any error at all. In my view, whether Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not.

Article III provides tha t Congress “may vest[] . . . the judicial power of the United States . . . only in courts whose judges enjoy the protections set forth in that Article.” Stern v. Marshall , 131 S. Ct. 2594, 2620 (2011) (emphasis added). T he Supreme Court has ruled time and again that this mandate is essentially ironclad, allowing exceptions only where “delineated in [the Court’s] precedents, rooted in history and the Constitution.” Northern Pipeline Construction Co. v. Marathon Pipe Line C o. , 458 U.S. 50, 74 (1982). One such exception

— the only one relevant here

— permits Congress to assign certain criminal cases to military commissions. See Al Bahlul , 767 F.3d at 7. The question in this case is whether conspiracy to commit war crimes falls wi thin the military

commission exception to Article III as articulated by the Supreme Court

. The search for precedent on that question begins and, for the most part, ends with Ex Parte Quirin . Although the en banc Court considered Quirin in some depth, our review here must be more searching, and that heightened standard leads me to a different result.

### 4

In Quirin , the Supreme Court described the contours of the military

- commission exception: commissions , the Court ruled, may try enemy belligerents for violati ons of the “law of war.” Ex Parte Quirin , 317 U.S. 1 (1942). That holding, of course, goes only so far. Because the conviction the Court sustained was for passing behind enemy lines out of uniform in order to attack military assets, and because the Court

a ssumed that that crime violated the international law of

war

— whatever the contemporary scholarly view

— it had no reason to decide whether the law

- of

- war exception was limited to international law. See Quirin , 317 U.S. at 36

– 37; Op. at 10

– 11.

That question i s critical here because in defending the constitutionality of MCA section 950, the government concedes that conspiracy does not violate the international law of war, thus implicitly acknowledging that by enacting that provision, Congress was not exercising its Article I authority to “define” the law of war. Given this, the issue before us is not whether this c ourt must defer to Congress’s “definition” of international law, but whether, as the government insists, the law of war includes some domestic crimes.

In my view, t he weight of the Court’s language in Quirin strongly indicates that the law

- of

- war exception is exclusively international. Making this point repeatedly, the Court observed that in sending Quirin and his fellow saboteurs to a military commiss ion, Congress had permissibly “exercised its authority . . . by sanctioning . . . the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations , and more particularly the law of war, are cognizable by such tribunals.” Id. at 28 (emphasis added); see also id. at 29 (calling the law of war a “branch of international law”). The Court made the

### 5
point even clearer in Yamashita : m ilitary

- commission auth ority derives from “the Law of Nations . . . of which the law of war is a part .” 327 U.S. 1, 7 (1946) (alteration in original) (emphasis added); see also Op. at 1 2

– 14

. Still, the Supreme Court never held

— because it had no need to

— that military commissions are barred from trying crimes recognized only by domestic law. Instead, it left that question for another day. That day looked like it would come in 2006 when the Court took up the case of Salim Hamdan, Osama Bin Laden’s personal driver, who was convicted of, among other things, conspiring to commit acts of terrorism. Like al Bahlul, Hamdan argued that the military commission that convicted him lacked jurisdiction because conspiracy was not a violation of the law of war. The Court, however, never reached t hat issue because it resolve d the case on statutory grounds, i.e., it held that the commission’s procedures ran afoul of the Uniform Code of Military Justice. In other words, the Court ruled that domestic law could limit military commission jurisdiction, b ut it had no reason to decide whether it could extend it.

The government, though agreeing that the Hamdan Court never directly held that the law of war includes domestic precedent, nonetheless argues that “seven justices . . . agreed that resolution of th e question did not turn solely on whether conspiracy was a violation of international law.” Respondent’s Br. 41. As the government points out, Justice Thomas, writing on behalf of himself and two other Justices

, did embrace this proposition. See Hamdan , 54 8 U.S. at 689 (Thomas, J., dissenting) (“ The common law of war as it pertains to offenses triable by military commission is derived from the experience of our wars and our wartime tribunals, and the laws and usages of war as understood and practiced by the civilized nations of the world.”) (citation and internal

### 6
quotation marks omitted) . But Justice Kennedy, writing for himself and three other Justices , relied on Quirin for the proposition that the law of war “derives from ‘rules and precepts of the law of nations ’; it is the body of international law governing armed conflict,” id. at 641 (Kennedy, J., concurring) (quoting Quirin , 317 U.S. at 28) (emphases added)

— a definition that rules out resort to domestic law.

To be sure, Justice Stevens observed that “ [t]he crime of ‘conspiracy’ has rarely if ever been tried as such in this country by any law

- of

- war military commission.” Id. at 603 (Stevens, J., plurality opinion). The government, however, reads far too much into this reference to domestic practice

, f or in the very same sentence Justice Stevens emphasized that “international sources”

— the Geneva Conventions and the Hague Conventions, which he described as “the major treaties on the law of war”

— “ confirm ” that conspiracy “is not a recognized violation of th e law of war.” Id. at 610 (emphasis added). Justice Stevens described Quirin in similar terms: sabotage was triable by military commission in that case because it “was, by universal agreement and practice both in this country and internationally, recognize d as an offense against the law of war.” Id. at 603 (quoting Quirin , 317 U.S. at 30) (emphasis added) (internal quotation marks omitted). By stating that international law “confirms” that conspiracy is not a violation of the law of war, and by describing t he Quirin sabotage as a violation of the law of war because it was treated as such “both in this country and internationally,” Justice Stevens was saying that, at a minimum, an act must violate the international law of war before Congress can grant militar y commissions jurisdiction over that crime. In other words , Justice Stevens did not conclude that domestic law alone could support military

- commissio n jurisdiction over conspiracy . This interpretation of Justice Stevens’s opinion seems especially obvious g iven that the three Justices who

### 7
signed onto his opinion also joined Justice Kennedy’s statement that the law of war “is . . . international law, ” i d. at 641 (Kennedy, J., concurring) , and not Justice Thomas’s opinion to the contrary.
Thus, although the Court held in Hamdan that domestic law

— namely, the UCMJ

— can limit the scope of military

commission jurisdiction, only three Justices would have extended that jurisdiction beyond the international law of war to the “American common law of war

. ” Given this, and given that Article III courts are the default, that exceptions must be “delineated in [the Court’s] precedents,” Northern Pipeline

, 458 U.S. at 74, and that the Schor balancing factors favor al Bahlul, see Op. at 33

– 36 , this “inferio r” court is without authority to go beyond the Supreme Court’s clear signal, sent first in Quirin and repeated in Yamashita , that military

commission jurisdiction is limited to crimes that violate the international law of war

. See United States v. Dorcely

, 454 F.3d 366, 375 (D.C. Cir. 2006) (the Supreme Court’s “carefully considered language . . . must be treated as authoritative”). Instead, we must leave it to the Supreme Court to take that step.

Moreover, and again proceeding on de novo review, I see
not hing in Article I of the Constitution t hat requires a different result . Judge Rogers demonstrates this convincingly. See Op. at 19

– 26. I add only that were the government correct about Article I, Congress would have virtually unlimited authority to bring a ny crime within the jurisdiction of military commissions

— even theft or murder

— so long as it related in some way to an ongoing war or the armed forces. Congress could simply declare any crime to be a violation of the law of war and then vest military commissions with jurisdiction to try it, thereby gutting Article III’s critical protections. The Supreme Court rejected that view of Article I in Northern

### 8
Pipeline . There, the Court concluded that Congr ess had no authority to establish bankruptcy courts entirely outside of Article III’s reach because any limit on such “broad legislative discretion” would prove “wholly illusory.” Northern Pipeline , 458 U.S. at 73

– 74. Like the bankruptcy scheme the Court r ejected in Northern Pipeline , the government’s view of Article I would “effectively eviscerate [Article III’s] guarantee of an independent Judicial Branch of the Federal Government.” Id. at 74.

Although the foregoing is sufficient to resolve this case,
t he government makes one more argument that deserves attention. Limiting commission jurisdiction to offenses that violate international law, it asserts, “would . . . inappropriately restrict Congress’s ability, in the absence of broad concurrence by the int ernational community, to adapt

. . . [to] future changes in the practice of modern warfare and the norms that govern it.” Respondent’s Br. 38; see also Dissenting Op. at 30

– 31. I agree with the government’s premise: that as a result of today’s decision, Co ngress will be unable to vest military commissions with jurisdiction over crimes that do not violate the international law of war. But as explained above, that is precisely what the Constitution, as interpreted by the Supreme Court, requires.

Despite the g overnment’s protestations, moreover, this court’s holding will not “inappropriately restrict” the nation ’ s ability to ensure that those who conspire to commit terrorism are appropriately punished. After all, the government can always fall back on the appar atus it has used to try federal crimes for more than two centuries: the federal courts. See 18 U.S.C. § 371 (criminalizing conspiracy). F ederal courts hand down thousands of conspiracy convictions each year, on everything from gun

- running to financial frau d to, most important here, terrorism. See C ENTER ON 

### L AW AND

### 9

SECURITY 

### , N EW 

### Y ORK 

### U NIVERSITY 

### S CHOOL OF 

### L AW 

### , T ERRORIST 

### T RIAL 

### R EPORT 

### C ARD 

### : S EPTEMBER 

### 11, 2001

- S EPTEMBER 

### 11, 2011 at 2, 7, table 1, available at http://goo.gl/Ks3Okc (since September 11, 2001, prose cutors have prevailed in almost 200 “jihadist

- related” terrorism and national

- security cases in federal courts); id. at 13 (“the most commonly charged crimes” have included violations of 18 U.S.C. § 371, for “general criminal conspiracy”). For instance, Za carias Moussaoui

— the potential 20th 9/11 hijacker

— pled guilty in federal court to six counts of conspiracy for his role in planning the 2001 attacks, see United States v. Moussaoui , 591 F.3d 263, 266 (4th Cir. 2010); a federal jury convicted Wadih el Hage, Mohamed Odeh, and Mohamed al Owhali for conspiring to bomb the American embassies in Kenya and Tanzania, see In re Terrorist Bombings of U.S. Embassies in East Africa , 552 F.3d 93, 107 (2d Cir. 2008); and Ahmed Abu Khattalah, who stands accused of conspir ing to attack the American diplomatic mission in Benghazi, Libya, awaits trial in this very courthouse, see Superseding Indictment, United States v. Ahmed Abu Khattala , No. 14

- cr

- 141 (D.D.C. Oct. 14, 2014), ECF No. 19.

By contrast, although the detention camp at the U.S. naval station at Guantánamo Bay has held at least 780 individuals since opening shortly after September 11th, and although military prosecutors have brought charges against some two hundred, the commissi ons have convicted only eight: al Bahlul, Hamdan, Noor Uthman Muhammed, David Hicks, Omar Khadr, Majid Khan, Ibrahim al Qosi, and Ahmed al Darbi. See M IAMI 

### H ERALD 

### , Guantánamo: By the Numbers , http://goo.gl/SEPfV6 (last updated May 12, 2015). Furthermore, d ue to various questions about the military

commission process itself , as of this writing only three of

### 10

those convictions

— Khan’s, al Darbi’s, and al Qosi’s

— remain on the books and unchallenged.1

K AREN L E C RAFT H ENDERSON , Circuit Judge , dissenting: In 1952, the Honorable Robert H. Jackson

— Associate Justice of the United States Supreme Court and former chief prosecutor at Nuremberg

— set out what has become the “accepted framework” for our constitutio nal jurisprudence in the areas of national security and military affairs. Medellín v. Texas , 552 U.S. 491, 524 (2008). Justice Jackson famously identified three categories of governmental action. Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 635

– 38 (1952) (Jackson, J., concurring). When the President and the Congress disagree (Category 3), their powers are subtractive. I d. at 63 7

– 3 8. When the President and the Congress act in concert (Category 1), however, their powers are additive: “the United States is invested with all the attributes of sovereignty” and the courts “should hesitate long before limiting or embarrassing such powers.” Id. at 635

– 37 & n.2 (quoting Mackenzie v. Hare , 239 U.S. 299, 311 (1915)) (emphasis omitted)

. Yet, according to my colleagues, Justice Jackson didn’t get the math quite right. He apparently failed to factor in an additional constraint on the political branches’ combined war powers: international law. My colleagues contend

— as a matter of constitutional law , not sim ple comity

— that the Congress cannot authorize military

- commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the content of international law is to be determined by

— who else?

— the Judiciary, with little or no deference to the political branches. Contra Rostker v. Goldberg , 453 U.S. 57, 65

– 66 (1981) (“perhaps in no other area has the Court accorded Congress greater deference” than “in the context of Congress’ authority
over nat ional defense and military affairs” ). But the definition and applicability of international law is, in large part, a political determination, see Finzer v. Barry , 798 F.2d2
1450, 1459

– 60 (D.C. Cir. 1986), aff’d in part, rev’d in part sub nom. Boos v. Barry , 485 U.S. 312 (1988) , and the decision to try an alien enemy combatant by military commission is part and parcel of waging war

, s ee Application of Yamashita , 327 U.S. 1, 11

– 12 (1946). The majority opinion thereby draws us into a thicket, one in which our “lack of competence .

. . is marked,” Rostker , 453 U.S. at 65, our democratic unaccountability glaring, Gilligan v. Morgan

, 413 U.S. 1, 10 (1973), and the ramifications of our actions unpredictable, Holder v. Humanitarian Law Project , 561 U.S. 1, 34 (2010 ) (“most federal judges” do not “begin the day with briefings that may describe new and serious threats to our Nation and its people”).

The immediate consequences of today’s decision are serious enough: my colleagues bar the Government from employing milit ary commissions to try individuals who conspire to commit war crimes against the United States. But the consequences moving forward may prove more alarming still. My colleagues’ opinion means that, in future conflicts, the Government cannot use military commissions to try enemy combatants for any law

- of

- war offense the international community has not element

- by

- element condoned. Their timing could not be worse. See Letter from the President to the Congress of the United States

– Authorization for the Us e of United States Armed Forces in Connection with the Islamic State of Iraq and the Levant (Feb. 11, 2015) . And the beneficiary of today’s decision could not be less deserving. Ali Hamza Ahmad Suliman al Bahlul (Bahlul) “is an alien unlawful enemy comba tant who

— like Hitler’s Goebbels

— led Osama bin Laden’s propaganda operation.” Bahlul v. United States , 767 F.3d 1, 33

– 34 (D.C. Cir. 2014) ( en banc ) (Henderson, J., concurring). He “freely admitted”

— indeed, bragged about

— his role in the attacks of Septembe r 11, 2001. Id. at 34. During his military

-3
commission trial, he never raised any of the arguments we today consider. The en banc court deemed his Ex Post Facto challenge forfeited and reviewed it for plain error only. Id. at 9

– 11. We should have taken the same approach here, rather than declaring unconstitutional a provision of the Military Commissions Act of 2006 (2006 MCA), Pub. L. No. 109

- 366, 120 Stat. 2600.

Accordingly, I must dissent.

I. S tandard of Review

................................ ................................ 3 II. The Constitutional Challenges

................................ ........... 29 A. Article I

................................ ................................ ......... 30 1. Define and Punish Clause

................................ ....... 32 2. Necessary and Proper Clause

................................ . 48 3. Broader War Powers

................................ ............... 53 a. Supreme Court Precedent

................................ . 55 b. Winthrop’s Treatise

................................ .......... 59 c. Historical Practice

................................ ............. 62 B. Article III

................................ ................................ ....... 68 1. Judicial Power Clause

................................ ............. 68 2. Criminal Jury Clause

................................ .............. 80 C. Equal Protection & First Amendment

......................... 85

I. STANDARD OF REVI EW

Beyond its troubling ramifications, one of the real tragedies of today’s decision is just how unn ecessary it is. Rather than reaching the merits, this case should begin and end with the “measuring stick” of appellate decisionmaking: the standard of review. John C. Godbold, Twenty Pages and Twenty Minutes: Effective Advocacy on Appeal , 30 S W

. L.J. 80 1, 810 (1976). The measuring stick we should use to review Bahlul’s arguments is plain error.4
Bahlul is an “alien unlawful enemy combatant” (enemy combatant) subject to trial by military commission under the 2006 MCA. 10 U.S.C. § 948c (2006). He contend s that his conviction of conspiracy to commit war crimes, 10 U.S.C. § 950v(28) (2006) (the challenged provision), violates the Define and Punish Clause of Article I, the Judicial Power and Criminal Jury Clauses of Article III, the equal protection
componen t of the Fifth Amendment Due Process Clause and the First Amendment. Had Bahlul properly preserved these questions of law, we would review them de novo

. See United States v. Popa , 187 F.3d 672, 674 (D.C. Cir. 1999). But he failed to do so.

During the mi litary

- commission proceedings, as the en banc court determined, Bahlul “waived all pretrial motions, asked no questions during voir dire, made no objections to prosecution evidence, presented no defense and declined to make opening and closing arguments.” Bahlul , 767 F.3d at 7. He “flatly refused to participate” and “instructed his trial counsel not to present a substantive defense.” Id. at 10. When Bahlul did make objections, they were “couched entirely in political and religious terms.” Id. He began by accusing the United States of being “an enemy [of] the Nation of Muslims” that supports “the great injustice that is carried out by .

. . the Jews on the Muslims in Palestine.” Appendix (App.) 112. He concluded by disclaiming concern with the proceed ings because they were based on earthly law, not Allah’s dictates. App. 116. Although he made stray references to “discrimination” and the “illegal” nature of his trial, App. 114

– 15 , his remarks were “unquestionably ‘too general to have alerted the trial court to the substance of his point.’ ” Bahlul , 767 F.3d at 10 (quoting, inter alia

, United States v. Bolla , 346 F.3d 1148, 1152 (D.C. Cir. 2003) (alteration omitted)). Bahlul therefore forfeited every5
substantive challenge to his conviction. See Pucke tt v. United States , 556 U.S. 129, 134 (2009).

In other words, Bahlul violated the contemporaneous

objection rule. That rule requires a party to, in a phrase, “speak now or forever hold your peace” : i f he fails to raise an argument in the trial court, he cannot raise it later on appeal. See id. at 135; Miller v. Avirom , 384 F.2d 319, 321

– 22 (D.C. Cir. 1967). The contemporaneous

- objection rule serves at least two purposes. First, it encourages fairness by penalizing sandbagging

— i.e. , “the intentional wit hholding of an objection by a party to be raised on appeal only if he loses at trial.” Bahlul , 767 F.3d at 9 (citing, inter alia

, Wainwright v. Sykes , 433 U.S. 72, 89 (1977)). Second, the rule promotes judicial efficiency by giving the trial court the fi rst opportunity to correct errors, Puckett , 556 U.S. at 134, and by ensuring that “litigation remains, to the extent possible, an orderly .

. . winnowing process

, ” Exxon Shipping Co. v. Baker , 554 U.S. 471, 487 n.6 (2008) (quotation marks omitted). See al so Wainwright , 433 U.S. at 90 (contemporaneous

- objection rule makes trial “main event” rather than mere “tryout on the road”).

The rule operates differently in civil and criminal cases. See Salazar ex rel. Salazar v. Dist. of Columbia , 602 F.3d 431, 437 ( D.C. Cir. 2010). In civil cases, forfeiture is usually the end of the matter; the appellate court does not review the tardy argument at all , unless it excuses the forfeiture due to “exceptional circumstances.” Dist. of Columbia v. Air Fla

. , Inc. , 750 F.2 d 1077, 1085 (D.C. Cir. 1984). In criminal

cases

— including these unique enemy combatant cases

— forfeiture triggers plain

- error review. Bahlul , 767 F.3d at 9 (citing, inter alia

, F ED

. R. C RIM

. P. 52(b); 10 U.S.C. § 950a(a)). The appellate court automatica lly excuses the defendant’s forfeiture but reviews his argument under a more6
exacting standard. See United States v. Olano , 507 U.S. 725, 732 (1993) (“ [t] he appellate court must consider the error” but it “may correct the error .

. . only if” it is plain (first emphasis added)). In this way, the plain

- error standard “tempers the blow” of the contemporaneous

- objection rule for a criminal defendant. United States v. Young , 470 U.S. 1, 15 (1985). But it also “reflects a careful balancing of our need to

enc ourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.” United States v. Frady , 456 U.S. 152, 163 (1982).

The plain

- error standard applies to “all” forfeit ed arguments in a criminal case. Puckett , 556 U.S. at 136; accord United States v. Delgado , 672 F.3d 320, 331 (5th Cir. 2012) (“[W]e do not read [the Supreme Court’s cases] as allowing for any exceptions to the application of the plain

error test for forf eited claims.”). 1 There is only one type of argument that is nonforfeitable and therefore exempt from plain

- error review: subject

- matter jurisdiction. See United States v. Cotton , 535 U.S. 625, 631 (2002); United States v. David , 96 F.3d 1477, 1482 (D.C. Cir. 1996); accord United States v. Washington , 653 F.3d 1251, 1257

– 58 (10th Cir. 2011) (“if a court ordinarily would consider an argument .

. .

1 Most of Bahlul’ s arguments involve personal constitutional rights that are indisputably forfeitable. See Peretz v. United States , 501 U.S. 923, 936 (1991) (“[t]he most basic rights of criminal defendants” can be forfeited); Yakus v. United States , 321 U.S. 414, 444 (194 4) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited .

. . .”); see also, e.g.

, Johnson v. United States , 520 U.S. 461, 466 (1997) (right to petit jury); United States v. Broxton , 926 F.2d 1180, 1183 (D.C. Cir. 1991) (equal protection); United States v. Accardi , 669 F.3d 340, 343

– 44 (D.C. Cir. 2012) (First Amendment).7
to be forfeited, it should only refrain from doing so .

. . when the alleged error is jurisdictional”). 2 Subj ect

- matter jurisdiction “can never be forfeited” because “it involves a court’s power to hear a case.” Cotton , 535 U.S. at 630 (emphasis added); see also United States v. Baucum , 80 F.3d 539, 540 (D.C. Cir. 1996).

Bahlul cannot seriously contest the milit ary commission’s jurisdiction. The 2006 MCA authorizes trial by military commission of “any offense made punishable by this chapter,” includ ing “conspiracy.” 10 U.S.C. §§ 948d(a), 950v(b)(28) (2006). It “explicitly confers jurisdiction on military commi ssions to try [Bahlul on] the charged offenses.” Bahlul , 767 F.3d at 10 n.6. Granted, Bahlul challenges this jurisdictional grant as beyond the Congress’s authority under the Define and Punish Clause. A challenge to the constitutionality of a jurisdicti onal statute, however, is not itself jurisdictional. See United States v. Williams , 341 U.S. 58, 66 (1951) (“Even the unconstitutionality of the statute

2 Nguyen v. United States , 539 U.S. 69 (2003), and Glidden Co. v. Zdanok , 370 U.S. 530 (1962) (plurality), are not to the contrary. I n both cases, the criminal defendants complained that a non

– Article III judge sat by designation on the court that reviewed or issued their respective convictions. Nguyen , 539 U.S. at 72 (chief judge of District Court for Northern Mariana Islands); Glidde n , 370 U.S. at 532 (retired judge of Court of Customs and Patent Appeals). Although the defendants failed to timely raise their objections, the Supreme Court nevertheless declined to apply the plain

- error standard. Nguyen , 539 U.S. at 80

– 81; Glidden , 370 U.S. at 535

– 36. Both Nguyen and Glidden , however, fit comfortably within the “jurisdictional” exception to plain

- error review. In Glidden , the plurality declared that it was “treat[ing] the alleged defect as ‘jurisdictional.’ ” 370 U.S. at 536. And in Nguyen , the Court repeatedly described the alleged error as a challenge to the court’s “authority.” 539 U.S. at 79

– 80; see also Rivera v. Illinois , 556 U.S. 148, 161 (2009) (unanimous) (describing Nguyen as case where court of appeals “lacked statutory a uthority to adjudicate the controversy” (emphasis added)).8
under which the proceeding is brought does not oust a court of jurisdiction.”); United States v. Drew

, 200 F.3d 871, 876 (D.C. Cir. 2000) (noting “the error in labeling a challenge to the constitutionality of a statute a jurisdictional issue”); Cotton , 535 U.S. at 630 (same); Baucum , 80 F.3d at 540

– 41 (because every federal statute enjoys “a presumption of validity,” the “assertion of a constitutional defect does not work to divest th[e] court of its original jurisdiction”). Bahlul’s Article I Define and Punish Clause argument is no more jurisdictional than his Article I Ex Post Facto Clause argument, whic h the en banc court reviewed for plain error. See Bahlul , 767 F.3d at 10 n.6 (“The question whether [the 2006 MCA] is unconstitutional does not involve the court[’s] statutory or constitutional power to adjudicate the case.” (quotation marks omitted)); se e also, e.g.

, United States v. Nueci

- Pe ñ a , 711 F.3d 191, 197 (1st Cir. 2013) (reviewing Define and Punish Clause challenge for plain error); United States v. Urena , 140 F. App’x 879, 881 (11th Cir. 2005) (same).

Bahlul’s challenge under the Judicial Power Clause of Article III is also forfeitable. Like his Define and Punish Clause argument, his Judicial Power Clause challenge is to the constitutionality of a jurisdictional statute, a challenge that is itself, to repeat, plainly nonjurisdictional. See Will iams
, 341 U.S. at 66; Bahlul , 767 F.3d at 10 n.6; Baucum , 80 F.3d at 540

– 41. The “Article III” label changes nothing; by this Clause, Article III restricts the Congress’s power, not the power of the courts or military commissions. See CFTC v. Schor , 478 U.S. 833, 850 (1986) (“Article III, § 1 .

. . bar[s] congressional attempts to transfer jurisdiction to non

- Article III tribunals” (emphasis added) (quotation marks and alterations omitted)). If a Judicial Power Clause challenge were in fact jurisdictiona l, a court would be required to raise it sua sponte each time it reviews a decision of a non

– Article III9
tribunal ( e.g. , agency adjudicator, magistrate judge, bankruptcy court). See Baucum , 80 F.3d at 541. Courts, of course, do not do this because they “ would have to assure themselves of a statute’s validity as a threshold matter,” “run[ning] afoul of established Supreme Court precedent declining to address constitutional questions not put in issue by the parties.” Id. ; see also, e.g.

, Granfinanciera, S. A. v. Nordberg , 492 U.S. 33, 6 4 n.19 (1989) (declining to reach Article III issue because “however helpful it might be for us to adjudge every .

. . constitutional issue presented by [a statute], we cannot properly reach out and decide matters not before u s”); United States v. Spector , 343 U.S. 169, 172 (1952) (declining to consider sua sponte Article III Judicial Power Clause issue ); Benjamin v. Jacobson , 172 F.3d 144, 163 n.** (2d Cir. 1999) ( en banc ) (same) ; In re Constr. Equip. Co. , 665 F.3d 1254, 1256 n.3 (Fed. Cir. 2011) (same)

. Why, then, do my colleagues review Bahlul’s Article III challenge de novo ? As best I can tell, their answer is “because Schor says so.” See Maj. Op. 3

– 9 ; Concur

. Op. 2 . I respectfully disagree. Here is the relevant passage from Schor :
[O]ur precedent s establish that Article III, § 1, not only preserves to litigants their interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as an inseparable el ement of the constitutional system of checks and balances. Article III, § 1 safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts to transfer jurisdiction to non

Article III tribunals for the purpose of emas culating constitutional courts, and thereby preventing the encroachment or aggrandizement of one branch at10
the expense of the other. To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constit utional difficulty for the same reason that the parties by consent cannot confer on federal courts subject

matter jurisdiction beyond the limitations imposed by Article III, § 2. When these Article III limitations are at issue, notions of consent and waiv er cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.

478 U.S. at 850

– 51 (emphas e s added) (quotation marks, citations and alterations omitted). But the High Court did not, by this la nguage, instruct courts to treat Judicial Power Clause challenges as nonforfeitable or to automatically review them de novo

. 3

3 My colleagues note that the Government “conceded” their reading of Schor is correct. Maj. Op. 6 . I do not take them to be saying, however, that the Government waived its plain

- error argument. On the contrary, the Government “argued for plain

- error review before the [United States Court of Military Commission Review (CMCR)], in its original brief to a panel of this Court and in its brief to the en banc court.” Bahlul , 767 F.3d at 10 n.5. The Government again asked us to review Bahlul’s Article III challenge for plain error. See Resp’t’s Br. 49

– 52, 60. And, even at oral argument, the Government objected to the notion that Bahlul was raising a nonforfeitable structural challenge

— hardly a conce ssion of the point. See Oral Arg. Recording 30:47 (“I do not acknowledge that he [Bahlul] was raising it [the structural Article III argument].”). In any event, to the extent the Government misinterprets Schor , I would decline to accept its interpretation

. See Young v. United States , 315 U.S. 257, 259 (1942) (“The proper administration of the criminal law cannot be left merely to the stipulation of parties.”). The Government cannot alter our standard of review

— by concession, inadvertence, poor oral advoc acy or otherwise. See United States v. Delgado

- Garcia , 37411
Put simply

, Schor is not a case about forfeitability at all

. As already discussed, the only nonforfeitable argument is subject

- ma tter jurisdiction. See Cotton , 535 U.S. at 631; David , 96 F.3d at 1482; accord Freytag v. Comm’r , 501 U.S. 868, 893

– 94 (1991) (Scalia, J., concurring) (“A party forfeits the right to advance on appeal a nonjurisdictional claim, structural or otherwise, th at he fails to raise at trial.” (emphasis added)). Schor did not hold that a Judicial Power Clause challenge is “jurisdictional.” Granted, the Court said that “parties cannot by consent cure the constitutional difficulty for the same reason that the part ies by consent cannot confer on federal courts subject

- matter jurisdiction.” Schor , 478 U.S. at 851 (emphasis added). In a later case, four Justices speculated that Schor drew an “analogy” between the Judicial Power Clause and subject

- matter jurisdiction

. Freytag , 501 U.S. at 897 (Scalia, J., concurring). But an issue’s analogy to subject

- matter jurisdiction does not make it jurisdictional; in fact, the very need for analogy suggests that the concepts are different. See William Fleming, Vocabulary of P hilosophy

, in A V OCABULARY OF THE P HILOSOPHICAL S CIENCES 21 (1878) (“ Analogy implies a difference in sort, and not merely in degree .

. . .”); see also NFIB v. Sebelius

, 132 S. Ct. 2566, 2656 n.6 (2012) (Scalia, Kennedy, Thomas, Alito, JJ., dissenting) (“T hat the penalty is to be ‘assessed and collected in the same manner as taxes’ refutes the proposition that it is a tax .

. . .” (emphas e s in original) ). And the analogy is a poor one at that. Because there is nothing jurisdictional

F.3d 1337, 1341 (D.C. Cir. 2004) (declining to accept Government’s concession that issue was jurisdictional and thus subject to de novo review); Nueci

- Pena , 711 F.3d at 196 n.5 (declining to accep t Government’s concession that constitutional challenge should be reviewed de novo , rather than for plain error); United States v. Vontsteen , 950 F.2d 1086, 1091 (5th Cir. 1992) (“[N]o party has the power to control our standard of review.” (emphasis in or iginal)).12
about a challenge to t he Congress’s constitutional authority to enact a statute, see Williams , 341 U.S. at 66; Bahlul , 767 F.3d at 10 n.6; Baucum , 80 F.3d at 540

– 41, a one

- sentence analogy is far too slim a reed to conclude that Schor carved out a “judicial power” exception to the Court’s earlier

— and consistent

— precedent on the forfeitability of constitutional arguments. See, e.g.

, Williams , 341 U.S. at 66; Yakus , 321 U.S. at 444. See generally Shalala v. Ill. Council on Long Term Care, Inc. , 529 U.S. 1, 18 (2000) (“This Court does not normally overturn, or so dramatically limit, earlier authority sub silentio .”).

But don’t take my word for it. The Supreme Court has since clarified that Schor did not declare Judicial Power Clause challenges to be non forfeitable ; instead, the C ourt in Schor at most exercised its discretion to excuse the forfeiture

. In Plaut v. Spendthrift Farms, Inc. , the Government

— like Bahlul

— attempted to rely on Schor for the proposition that “parties cannot waive the structural principle of Article III.” B rief for United States at 27, 514 U.S. 211 (1995) (No. 93

- 1121), 1994 WL 387806. The Supreme Court expressly rejected this view:

[T]he proposition that legal defenses based upon doctrines central to the courts’ structural independence can never be waived simply does not accord with our cases. Certainly one such doctrine consists of the “judicial Power” to disregard an unconstitutional statute; yet none would suggest that a litigant may never waive the defense that a statute is unconstitutional.

. . . We h eld in Schor that, although a litigant had consented to bring a state

- law counterclaim before an Article I tribunal, we would nonetheless choose to consider his Article III challenge, because “when these Article III13
limitations are at issue, notions of con sent and waiver cannot be dispositive ,” id ., at 851 (emphasis added). See also Freytag v. Commissioner , 501 U.S. 868, 878

– 879 (1991) (finding a “rare cas[e] in which we should exercise our discretion” to hear a waived claim based on the Appointments Claus e, Art. II, § 2, cl. 2).

Plaut , 514 U.S. at 231

– 32 (first emphasis added) (some citations omitted). Plaut makes plain that a party can forfeit a Judicial Power Clause argument and there is no “ Schor exception” to the rule that a “structural” constitutiona l challenge is forfeitable . Whether an appellate court entertain s such a challenge is a matter of discretion , not an inexorable command from Schor

. 4

Granted, in a series of bankruptcy cases , many of our sister circuits interpreted Schor to create a rule of nonforfeitability, despite the Supreme Court’s clarification in Plaut

. See Wellness Int’l Network, Ltd. v. Sharif , 727 F.3d 751, 767

– 73 (7th Cir. 2013), rev’d , No. 13

- 935, 2015 WL 2456619 (U.S. May 26, 2015); In re BP RE, L.P. , 735 F.3d 279, 286

– 87 (5 th Cir. 2013); Waldman v. Stone , 698 F.3d

4 My colleagues also cite Stern v. Marshall , 131 S. Ct. 2594 (2011), to support their reading of Schor . Maj. Op. 6. But Stern said nothing about the forfeitability of Judicial Power Clause challenges. In Stern , the Supreme Court reviewed de n ovo the respondent’s Judicial Power Clause challenge to the bankruptcy court’s adjudication of a state

- law counterclaim. See id. at 2608. There is no indication, however, that the respondent ever forfeited this argument. Although he did forfeit his chal lenge to the bankruptcy court’s adjudication of his defamation claim, id. at 2606, he “did not truly consent to” its adjudication of the petitioner’s tortious

- interference counterclaim, id. at 2614. And, in fact, the respondent had earlier objected to the bankruptcy court’s jurisdiction of the counterclaim. See id . at 2601

– 02.14
910, 917

– 18 (6th Cir. 2012). But see In re Bellingham Ins. Agency, Inc. , 702 F.3d 553, 566 (9th Cir. 2012), aff’d on other grounds sub nom. Exec

. Benefits Ins. Agency v. Arkison , 134 S. Ct. 2165 (2014). In Kurets ki v. Commissioner , this Court

— relying in part on the bankruptcy cases from our sister circuits

— read Schor to mean that a party “ did not (and could

not ) .

. . waive his ‘structural’ claim” under the Judicial Power Clause of Article III. 755 F.3d 929 , 937 (D.C. Cir. 2014) (emphasis added); see also id. at 938 (citing Waldman ). No matter the correctness vel non of these cases when they were decided

, t he ir continued validity has been fatally undermined by two very recent Supreme Court decisions

.

In B& B Hardw are, Inc. v. Hargis Indus., Inc. , 135 S. Ct. 1293 (2015) , the Supreme Court considered whether the decisions of the Trademark Trial and Appeal Board

— a non

– Article III tribunal

— were entitled to issue

- preclusive effect

. See id. at 1299, 1303. If issue prec lusion applied, t he respondent claimed that the Judicial Power Clause would be violated

. See id. at 1304. The Court expressly declined to consider the claim because the respondent had not brief ed it

. See id. ; see also id. at 1305 n.2 (“[W]e do not decid e whether such preclusion is unconstitutional because the issue is not before us.”) ; id. at 1304 (“ To the extent

. . . there could be a meritorious constitutional objection, it is not before us. ”)

. In other words, the respondent forfeited the Article III argument

— a holding that plainly contradicts the notion that Judicial Power Clause challenges are nonforfeitable

. Significantly , the Court relied on Plaut to support its forfeiture determination

. See id. at 1304 (citing Plaut , 514 U.S. at 231

– 32)

.

In Well ness International Network, Ltd. v. Sharif

, No. 13

- 935 (U.S. May 26, 2015), the Supreme Court made its view on the forfeitability of a Judicial Power Clause challenge as15

p l ain as day. The main holding of Sharif is that a party’s
consent eliminates the Art icle III problem presented by bankruptcy court adjudication

. See No. 13

- 935, slip op. at 2. But, near the end of the opinion, the Court also indicated that Judicial Power Clause challenges are forfeitable

. In the decision under review

, the Seventh Circu it had held that the “structural interests” protected by the Judicial Power Claus e cannot be forfeited

. S ee id. at 7 & n.5 (quoting Sharif , 727 F.3d at 771 )

. The Supreme Court reversed that decision in

toto

. See i d. at 8 , 20

. In fact, the Court remande d the case to the Seventh Circuit with instructions to conduct the “factbound analysis” necessary to determine “ whether

. . . Sharif forfeited his Stern argument below. ” I d. at 20. [ A

“ Stern argument ”

— it should go without saying

, contra Maj. Op. 7

– 8

— is a “structural” Judicial Power Clause challenge

. See Arkison , 134 S. Ct. at 2170 (“ Stern claims” are “claim[s] design at ed for final adjudication in the bankruptcy court .

. . but prohibited from proceeding in that way as a constitutional matter” because “Ar ticle III prohibits Congress from vesting a bankruptcy court with th[at] authority” (emphasis added) ) .] One Justice in Sharif went further , concluding that remand was unnecessary because the Judicial Power Clause challenge

was indisputably forfeited :

[R] e spondent forfeited any Stern objection by failing to present that argument properly in the courts below. Stern vindicates Article III, but that does not mean that Stern arguments are exempt from ordinary principles of appellate procedure.

Id. , concurring op. at 2 (Alito, J.)

. He, unsurprisingly, relied

on B&B Hardware for this conclusion

. Id. (citing B&B Hardware , 135 S. Ct. at 1304). The other five Justices in the Sharif majority necessarily agreed that “ordinary principles of appellate procedure” gove rn , id. : they would not have16
remanded the forfeiture question if the Seventh Circuit were right all along that a “structural” Judicial Power Clause challenge cannot be forfeited

. 5 Accordingly, Sharif not only overruled our sister circuits’ earlier bankrup tcy cases, but, in my reading, it also undermined the relevant language from Kuretski

. C ontra Maj . Op. 5

. Notwithstanding the charge that I “misinterpret [] ” Sharif

, Maj. Op. 8 , it i s my colleagues’ reading that misses the mark. They believe Sharif reinfo rced Schor ’ s supposed rule of

non forfeitability . T o support this point, they rely on passages in Sharif that discuss the distinction between the “personal” and “structural” aspects of Article III. See Maj. Op. 5

, 6
, 8

5 My colleagues emphasize that in Sharif the Supreme Court reviewed the Article III question de novo. Maj. Op. 6, 8 . This is true but unhelpful to them. The Supreme Court grante d certiorari in Sharif to determine whether a party’s consent cures the structural Article III problem posed by bankruptcy court adjudication

— a question that was decided by the Seventh Circuit and briefed in the Supreme Court. The Court answered the quest ion in the affirmative. It then remanded to the Seventh Circuit to determine whether Sharif in fact consented to bankruptcy court adjudication and

— if not

— whether Sharif nonetheless forfeited his Judicial Power Clause challenge by not timely raising it. S ee No. 13

- 935, slip op. at 20; Pet’r’s Wellness Int’l, et al. Br. 47

– 48, 2 014 WL 4467356 (U.S. 2014) (arguing that “litigants may waive or forfeit constitutional rights that implicate structural concerns”); Pet’r’s Wellness Int’l, et al. Reply Br. 26, 2014 WL 7272803 (U.S. 2014) (again arguing that “Sharif forfeited his Stern argument” (quotation marks and brackets omitted)). In other words, the Supreme Court answered an important question of law de

novo but still allowed for the prospect that Sharif would ultimately lose his appeal because he forfeited his structural Article III challenge. My colleagues’ decision to vacate Bahlul’s conviction in fact contradicts, rather than hews to, this approach. If they wanted to be faithful to Sharif ’s disposition in the criminal context, they could have resolved Bahlul’s Article III claim de novo under the “error” prong of the plain

- error standard but then affirmed his conviction because the error was not “plain.” See infra p. 28.17
(citing Sharif , No. 13

- 935, slip op. at 9, 11

– 12

, 14 n.10 ; id.

, dissenting op. at 12 (Roberts, C.J.)). These passages, however, have nothing to do with appellate procedure ; they instead speak to the merits

. To put it another way, when Sharif speaks of “waiver,” it means the waiver of righ ts , not the forfeiture of arguments

. The question the Court address ed in Sharif is whether

“ consent ” ( sometimes referred to, interchangeably, as “waiver”) can “ cure the constitutional difficulty ” presented by

non

– Article III adjudication. No. 13

- 935, sli p op. at 9, 14 n.10 (quoting Schor , 478 U.S. at 851 (emphas i s added)); id

, dissenting op.

. at 12 (Roberts, C.J.) (same). The idea is that, when a party knowingly and voluntarily waives certain constitutional rights, no constitutional violation occurs in t he first place

. See id

. , slip op. at 14 n.10 ; see also id. , dissenting
op. at 2 (Thomas, J.) (“Although it may not authorize a constitutional violation, consent may prevent one from occurring in the first place.”). This is true for “personal” rights, lik e the right to a jury, but

— as Schor and Sharif make plain

— it is not true for violations of the Article III Judicial Power Clause

. See id

. , slip op

. at 9; Schor

, 478 U.S. at 849

– 5 1. A party’s consent cannot

, by itself

, “ excuse an actual violation of Artic le III” because the Judicial Power Clause protects “structural” interests aliunde the narrow concerns of the parties

. Sharif , No. 13

- 935, slip op. at 14 n.10; see also Schor , 478 U.S. at 851 (“ When these Article III limitations are at issue, notions of co nsent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect. ” (emphasis added)). Sharif , however, clarified that consent can be one factor that keeps a violation of Article II I from occurring , so long as it is not the only factor. See No. 13

- 935, slip op. at 14 n.10 (“[C]onsent remains highly relevant when determining

. . . whether a particular adjudication in fact raises18

constitutional concerns .

. . . [C]onsent shows, in pa rt, why no [structural] violation has occurred.” (citation omitted) )

. This is an important holding : it clarifies the role of consent in the application of the Schor balancing test

. Yet it says nothing about forfeiture, appellate procedure, preservation o f arguments, standards of review or the like. It pertains only to the merits, i.e. the question whether Artic le III is in fact violated. 6

The Supreme Court eloquently explained the waiver

- of

rights/forfeiture

- of

- arguments distinction in Puckett :

[The defe ndant’s] argument confuses the concepts of waiver and forfeiture. Nobody contends that [the defendant’s] counsel has waived

— that is, intentionally relinquished or abandoned

— [the defendant’s] right

. . . . The objection is rather that [the defendant] forf eited the cla im of error through his counsel’ s failure to raise the argument in the District Court. This Court’ s precedents requiring that certain waivers be personal, knowing, and voluntary are thus simply irrelevant. Those holdings

6 Even if my colleagues were corre ct that Sharif ’s discussion of “waiver” refers to forfeiture , they could not reconcile the Court’s repeated admonitions that structural Article III challenges can , in fact, be waiv ed

. See, e.g.

, Sharif , No. 13

- 935, slip op. at 16

– 17 n.11 (“[T]he propositi on that legal defenses based upon doctrines central to the courts’ structural independence can never be waived simply does not accord with our cases.” (quoting Plaut , 514 U.S. at 231 (emphasis added) (alteration in original) ) ); id. at 12

– 13 (“[A]llowing ba nkruptcy litigants to waive the right to Article III adjudica tion of Stern claims do es not usurp the constitutional prerogatives of Article III courts. ” (emphasis added)); id. at 17 ( distinguishing Stern

— a structural Article III precedent

— on basis that “[t ] h e Court has never .

. . h[e]ld that a litigant who has the right to an Article III court may not waive that right through his consent.”).19

determine whether er ror occurred , but say nothing about the proper standard of review when the claim of error is not preserved.

556 U.S. at 138 (citation omitted) (second emphasis added). The Court’s analysis makes plain an obvious point when applied here. An enemy combatan t must knowingly and voluntarily consent to non

– Article III adjudication before his
consent can ward off a violation of the Judicial Power Clause. See Sharif , No. 13

- 935, slip op. at 18

– 19. But we should not

even review a Judicial Power Clause challenge if he forfeits the argument by failing to timely raise it

. To summarize, the Supreme Court has made triply clear in Plaut

, B&B Hardware and Sharif that Schor did not label an Article III challenge as nonforfeitable ; instead, the Schor Court exercised its d iscretion to excuse a forfeiture of the Judicial Power Clause challenge. This distinction

— between nonforfeitability , on the one hand, and discretion to excuse forfeiture , on the other

— is crucial for two reasons.

First , in a criminal case like this one , an appellate court lacks the kind of discretion the Court exercised in Schor . As noted, appellate courts in civil cases can excuse a forfeiture in “exceptional circumstances.” Air Fla

. , 750 F.2d at 1085. The Supreme Court has expressly declined to limit t his discretion. See Exxon Shipping , 554 U.S. at 487. Accordingly, courts occasionally exercise their discretion in civil cases to review “structural” separation

- of

- powers challenges de novo

, notwithstanding they were not raised below. See, e.g.

, Freytag , 501 U.S. at 879; Schor , 478 U.S. at 851; Glidden

, 370 U.S. at 536

– 37 (plurality); Kuretski , 755 F.3d at 936

– 37. But see Freytag , 501 U.S. at 892

– 901 (Scalia, J., concurring) (explaining why “structural” constitutional challenges should not receive speci al treatment).20
The rules are different, however, in criminal cases. Over the last three decades, the Supreme Court has repeatedly restricted our authority to deviate from the plain

- error standard. See, e.g.

, United States v. Marcus , 560 U.S. 258, 262

– 66 (2010) ; Puckett , 556 U.S. at 134

– 43; Cotton , 535 U.S. at 629

– 34; Johnson , 520 U.S. at 466

– 70; Olano , 507 U.S. at 731

– 41; Young , 470 U.S. at 14

– 16 & nn.12, 14; Frady , 456 U.S. at 163 & nn.13

– 14. In criminal cases, the plain

- error standard operates as a “li mitation on appellate

- court authority.” Puckett , 556 U.S. at 134; see also United States v. Farrell , 672 F.3d 27, 36 (1st Cir. 2012). It “strictly circumscribe[s]” our ability to remedy forfeited errors, Puckett , 556 U.S. at 134; we “must” review them fo r plain error only. Marcus , 560 U.S. at 266; United States v. Brown

, 508 F.3d 1066, 1076 (D.C. Cir. 2007). The plain

- error standard strikes a “careful balance” between furthering the purposes of the contemporaneous

- objection rule and remedying obvious in justice. Puckett , 556 U.S. at 135; see also Johnson , 520 U.S. at 466; Young , 470 U.S. at 15. “Any unwarranted extension” of the standard “skew[s]” this balance, Young , 470 U.S. at 15, and “the creation of an unjustified exception”

— like the one Bahlul req uests

— is “even less appropriate.” Puckett , 556 U.S. at 136 (alteration omitted); see also Young , 470 U.S. at 16 n.14 (criticizing practice of creating “ per se ” exce ptions to plain

- error review).

Courts apply plain

- error review in criminal cases notwithsta nding “the seriousness of the error claimed.” Johnson , 520 U.S. at 466; accord United States v. Padilla

, 415 F.3d 211, 220 (1st Cir. 2005) ( en banc ) (“forfeited errors, even if structural, are subject to [plain

- error review]”). Notably, when the Supreme Court was presented with a “structural” Article III challenge in a criminal case, four Justices thought it should be reviewed for plain error

— Schor notwithstanding. See Nguyen , 539 U.S. at 88 (Rehnquist,21
C.J., dissenting). 7 Likewise, our sister circuits frequently review Judicial Power Clause challenges in criminal cases for plain error only. See, e.g.

, United States v. Shultz , 733 F.3d 616, 621 (6th Cir. 2013); United States v. Woodard , 387 F.3d 1329, 1331, 1333 (11th Cir. 2004); United States v. Bishop

, 603 F.3d 279, 280 (5th Cir. 2010); United States v. Tejeda

, 476 F.3d 471, 474 (7th Cir. 2007); United States v. Torres

, 258 F.3d 791, 794 (8th Cir. 2001); United States v. Mike , 632 F.3d 686, 691

– 92, 700 (10th Cir. 2011); United States v. Nash , 438 F.3d 1302, 1304 (11th Cir. 2006); United States v. Daniels , 182 F.3d 910 (4th Cir. 1999) ( table ).

The distinction between criminal and civil cases may seem counterintuitive because, ordinarily, the plain

- error standard places a criminal defendant in a better po sition than a civil litigant. See Bahlul , 767 F.3d at 9 (plain

- error review “mitigate[s] the sometimes harsh results of the forfeiture rule in criminal cases”). But this intuition focuses myopically on one side of the plain

- error “balance” to the exclusi on of the other. Puckett , 556 U.S. at 135. Plain

- error review gives the contemporaneous

- objection rule its “necessary bite.” Daniel J. Meltzer, State Court Forfeitures of Federal Rights , 99 H ARV

. L. R EV

. 1128, 1135 (1986) ; see also id. (“ A requirement t hat a particular issue be raised in a particular fashion or at a particular time would hardly be effective if failures to comply were never punished.” ). As the Supreme Court has cautioned, “a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal ” to the rationale of the contemporaneous

- objection rule. Puckett , 556 U.S. at 134 (emphasis added). That rationale is “especially compelling” in criminal cases. Cobbledick v.

7 The majority in Nguyen did not reach the Article III question because it decided the case on an alternate statuto ry ground. See 539 U.S. at 81.22

United States , 309 U.S. 323, 325 (1940); see also Di Bella v. United States , 369 U.S. 121, 124 (1962) (“undue litigiousness and leaden

- footed administration of justice [are] particularly damaging to the conduct of criminal cases”). Society has an especially strong interest in the finality of crimin al proceedings because “[w]ithout [it], the criminal law is deprived of much of its deterrent effect.” Teague v. Lane , 489 U.S. 288, 309 (1989); see also id. (“No one, not criminal defendants, not the judicial system, not society as a whole is benefited b y a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.”); Young , 470 U.S. at 16 (“To turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.”). In short, plain

- error review reconciles multiple competing concerns in criminal cases and provides a rule to accommodate them ex ante . Absent jurisdictional erro r, we cannot do otherwise than apply this venerable standard. 8

8 None of this analysis

— contrary to my colleagues’ contention, Maj. Op. 9

— turns on the applicability of F ED

. R. C RIM

. P. 52(b). The en banc court imported the plain

- error standard into enemy combatant cases “whether or
not Rule 52(b) directly governs.” Bahlul , 767 F.3d at 9 n.4 (citing Salazar , 602 F.3d at 437). The plain

- error standard strikes a delicate “balance” that is irrevocably “skew[ed]” whenever courts exempt litigants from its requirements. Salazar , 602 F.3d at 440. The Supreme Court’s decisions to this effect bind us no matter the doctrinal source of the plain

error standard. See Olano , 507 U.S. at 731 (noting that Rule 52(b) is merely “a restatement of existing law” (quoting F ED

. R. C RIM

. P. 52(b), advisory committee’s note (1944))). To the extent it makes a difference, the plain

- error standard does have a statutory basis in enemy combatant cases. The 2009 MCA provides that “[a] finding or sentence of a military commission .

. . may not be held incorrect on the ground of an error of law unless the error23

materially prejudices the substantial rights of the accused.” 10 U.S.C. § 950a(a). The Congress took this language from the review provision in the Uniform Code of Military Justice (UCMJ). See id. § 859(a); see also id. § 948b(c) (“[t]he procedures for military commissions .

. . are based upon the procedures for trial by general courts

- martial under .

. . the [UCMJ]”). The U.S. Court of Appeals for the Armed Forces (CAAF) has long read the UCMJ’s review pro vision to incorporate a plain

- error standard that is identical, in all material respects, to Rule 52(b). See United States v. Tunstall , 72 M.J. 191, 197 n.7 (C.A.A.F. 2013); see also id. at 196 (“To establish plain error, an appellant has the burden to de monstrate: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.”). Given the CAAF’s interpretive gloss on the UCMJ and the Congress’s use of identical language in the 2009 MCA , the plain

- error standard applies with the same statutory force here. See 10 U.S.C. § 948b(c) (“judicial construction and application” of UCMJ is “instructive” in interpreting 2009 MCA); Sekhar v. United States , 133 S. Ct. 2720, 2724 (2013) (“[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.”); Bragdon v. Abbott , 524 U.S. 624, 645 (1998) (“When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.”). The sources cited by my colleagues , Maj. Op. 9

, are in apposite because they deal with review by the Service Courts of Criminal Appeals (CCAs) and CMCR, rather than the “much more limited” review of the CAAF and this Court. United States v. Claxton , 32 M.J. 159, 162 (CMA 1991); see also United States v. Powel l , 49 M.J. 460, 463 (CAAF 1998) (“[CCAs] enjoy much broader appellate authority than civilian intermediate courts or our Court.”); United States v. Riley , 47 M.J. 276, 281 (CAAF 1997) (Gierke, J., concurring) (whereas “a [CCA] may take notice of errors of law, whether or not they were preserved by timely objection[, the CAAF] is constrained by the rules of waiver and the doctrine of plain error”). Indeed, the CAAF applies plain error even when the CCA reviewed a forfeited issue de novo

. See, e.g.

, Riley

, 47 M.J. at 279

– 80 (majority op.); United States v. Goings , 72 M.J. 202, 203

– 04 (CAAF 2013); Tunstall , 72 M.J. at 193

– 96; United States v. Sweeney , 70 M.J. 296, 300 n.8, 304 (CAAF 2011).24
Second, e ven if we could bypass the plain

- error standard and review Bahlul’s Article III challenge de novo , I would follow the en banc court and decline to do so here. Preliminarily , my collea gues are wrong to suggest that the Supreme Court has “instructed that courts should excuse waivers of Article III structural claims.” Maj. Op. 8 (emphasis added). Quite the contrary: it is a “rare” case in which we entertain a forfeited Article III argum ent. Plaut

, 514 U.S. at 232 (quoting Freytag , 501 U.S. at 878

– 79). Enforcing the traditional rules of waiver and forfeiture in the context of a Judicial Power Clause challenge , as in other contexts, serves the important interests of “increas ing judicial efficiency and check ing gamesmanship

. ” Sharif , No. 13

- 935, slip op. at 19. Moreover, several factors unique to Bahlul’s case make it a particularly inappropriate occasion to forgive his forfeiture

. Most notably , my colleagues’ application of de novo revi ew leads them to invalidate a provision of the 2006 MCA

— a duly enacted statute produced by a coequal branch. See Rostker , 453 U.S. at 64 (“[W]e must have due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgmen t upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.” (quotation marks omitted)). Examining the constitutionality of a statute is “legitimate only in the last resort, and as a ne cessity.” Chicago & G.T. Ry. Co. v. Wellman , 143 U.S. 339, 345 (1892); see also Pearson v. Callahan , 555 U.S. 223, 241 (2009) (courts should not “pass on questions of constitutionality unless such adjudication is unavoidable” (ellipsis omitted)); Lyng v. Nw. Indian Cemetery Protective Ass’n , 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the25
necessity of deciding them.”); N. Pipeline Constr . Co. v. Marathon Pipe Line Co. , 458 U.S. 50, 90 (1982) (Rehnquist, J., concurring in judgment ) (“Particularly in an area of constitutional law such as that of ‘Art. III Courts,’ with its frequently arcane distinctions and confusing precedents, rigorous ad herence to the principle that this Court should decide no more of a constitutional question than is absolutely necessary accords with both our decided cases and with sound judicial policy.”) . Restraint is particularly necessary here because our decision a ffects sensitive matters of national security, the consequences of which we have neither the information nor the perspicacity to predict. See Dep’t of Navy v. Egan , 484 U.S. 518, 530 (1988) (“courts traditionally have been reluctant to intrude .

. . in mi litary and national security affairs”); Latif v. Obama , 677 F.3d 1175, 1182 (D.C. Cir. 2011) (“Both the Constitution and common sense support judicial modesty” in this area because “the judiciary has the least competence and the smallest constitutional foo tprint.”); Humanitarian Law Project , 561 U.S. at 34 (“[N]ational security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct di fficult to assess.”).

Further , excusing Bahlul’s forfeiture would not serve the interests of justice because he is concededly

— and unapologetically

— guilty of the charged offenses. Before the military commission, Bahlul candidly admitted to being a member o f al Qaeda and engaging in all of the conduct attributed to him. See App. 190

– 94. Although he took one exception to the charge that he wore an explosive belt in order to protect bin Laden, he also noted, “[T]his doesn’t mean that if I was given an explos ive belt and bin Laden .

. . asked me to explode myself, that I wouldn’t do that. Of course, I would.” App. 194. He promised to continue “to fight America” if26
released “until the last drop of blood.” App. 16 1

– 6 2; see also App. 161 (“I will not leave th e American government anywhere on the face of this earth.”). As I explain later, infra
pp. 38

– 4 2 , Bahlul’s conduct was indisputably illegal under international law, whether or not he was charged with an offense the international community expressly recogn izes. See Marcus , 560 U.S. at 265 (declining to exempt from plain

error review “errors that create a risk that a defendant will be convicted based exclusively on noncriminal conduct”). The notion that we should pardon Bahlul’s forfeiture is “so ludicrous as itself to compromise the public reputation of judicial proceedings.” Puckett , 556 U.S. at 143; see also Cotton , 535 U.S. at 634 (“The real threat .

. . to the ‘fairness, integrity, and public reputation of judicial proceedings’ would be if respondents , despite the overwhelming and uncontroverted evidence that they were [guilty], were to [benefit from] an error that was never objected to at trial.”).

Finally, nothing prevented Bahlul from raising his constitutional challenges before the military commiss ion. See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd. , 571 F.3d 69, 76 (D.C. Cir. 2009) (declining to forgive forfeiture because party “offer[ed] no justification for its delay”). Bahlul chose to “boycott” the proceedings in the hope it

wou ld “make the Muslims rise for [al Qaeda’s] cause.” App. 156, 162 . By rejecting the assistance of counsel and voluntarily absenting himself from the proceedings, forfeiture was “one of the perils [Bahlul] assume[d].” United States v. Vonn , 535 U.S. 55, 7 3 n.10 (2002). Bahlul had every opportunity to raise his challenges and he must accept the consequences of his deliberate failure to do so. See Puckett

, 556 U.S. at 136.

Nor is this a case where applying the ordinary rules of forfeiture would forever p revent de novo review of the27
constitutionality of the challenged provision

. This concern may have been the principal motivation behind Schor

. T he law at issue in Schor permitted the CFTC to hear state

- law counterclaims in reparations proceedings. 478 U. S. at 837. But the CFTC’s jurisdiction was non

- exclusive: parties remained free to bring reparations claims in federal court. Id. at 836. Thus, parties who chose to litigate before the CFTC arguably waived their right to complain about the CFTC’s adjudi cation of state

- law counterclaims. The same was true for the parties who raised the counterclaims

— which were permissive, not compulsory, under the relevant law. Id. at 837. As a result, the Supreme Court faced a dilemma. If the ordinary rules of waiver applied, no court could ever determine whether the CFTC’s adjudication of state

- law counterclaims violated the Judicial Power Clause of Article III. This Catch

- 22 likely animated the Schor Court’s decision to excuse the waiver and explains why it thought that “the parties cannot be expected to protect” the “institutional interests” behind Article III. Id. at 851. Here, that concern is plainly absent because every enemy combatant has the ability

— and incentive

— to challenge the military commission’s jurisd iction. See Bond v. United States , 131 S. Ct. 2355, 2365 (2011) (“[T]he claims of individuals

— not of Government departments

— have been the principal source of judicial decisions concerning separation of powers and checks and balances.”); Daniel J. Meltzer, Legislative Courts, Legislative Power, and the Constitution , 65 I ND

. L.J. 291, 304 (1990) (“[T]he strategic interests of litigants substantially coincide with institutional interests protected by article III.”). We can indeed check “the power of the poli tical branches to sideline the federal courts,” Maj. Op. 6
, once an enemy combatant properly preserves the argument. See Sharif , No. 13

- 935, slip op. at 19 (“ the Article III right is substantially honored ” notwithstanding courts “ permit ting waiver ” in som e

cases ).28
In sum, I believe my colleagues err by parting ways with the en banc court and reviewing Bahlul’s Article III challenge de novo . Their decision to sidestep the plain

- error standard reads too much into an obscure passage from Schor

— a reading the Supreme Court disavowed in Plaut and overruled in Sharif

— and ignores important distinctions between civil and criminal cases. Cf. Sharif , No. 13

- 935, dissenting op. at 18 (Thomas, J.) (Article III issues “ cannot

— and should not

— be resolved through a cursor y reading of Schor , which itself is hardly a model of careful constitutional interpretation”).

Applying the plain

- error standard of review, I would easily reject Bahlul’s challenges to his conspiracy conviction. The plain

- error standard is “difficult” to satisfy, “as it should be.” United States v. Dominguez Benitez , 542 U.S. 74, 83 n.9 (2004). The forfeited error must be “so obvious” that “the trial judge and prosecutor were derelict in countenancing it.” Bolla , 346 F.3d at 1153. Here, the Congress’s decision to authorize the trial of conspiracy by military commission did
not plainly transcend Ar ticle III , as the en banc court’s decision and my colleague’s concurrence impliedly recognize. See Bahlul , 767 F.3d at 18

– 27; Concur. Op. 1

– 2 . At the very le ast, “the lack of prior precedent .

. . and the novelty of the issue presented militate against calling th[is] mistake plain error.” United States v. Blackwell , 694 F.2d 1325, 1342 (D.C. Cir. 1982); see also United States v. Terrell , 696 F.3d 1257, 1260 ( D.C. Cir. 2012) (error not plain unless “a clear precedent in the Supreme Court or this circuit establishe[s] its erroneous character”). Thus, no matter one’s view of the merits, Bahlul cannot satisfy the “plainness” requirement of the plain

- error standar d. See Olano , 507 U.S. at 732. Nor do I believe he can satisfy the “error” requirement, a topic I turn
to now.29

II. THE CONSTITUTIO NAL CHALLENGES

Bahlul argues that (i) the Congress

— in codifying conspiracy to commit war crimes as an offense triable by mi litary commission

— exceeded its Article I powers and independently violated Article III; (ii) he was convicted based on his thoughts, beliefs and ideals in contravention of the First Amendment; and (i ii ) the 2006 MCA discriminates against him as an alien in violation of the equal protection component of the Fifth Amendment. The latter two arguments are frivolous on their face. See infra Part II.C. Bahlul’s Article I and Article III arguments, however, warrant a more thorough examination.

As detailed below , the Congress acted within its Article I authority and did not contravene any personal or structural Article III principles in codifying conspiracy as an offense triable by military commission. Bahlul’s conspiracy trial and conviction were sanctioned by the President, 9 “pursuant to an
express .

. . authorization of Congress.” Youngstown , 343 U.S. at 635 (Jackson, J., concurring). The ir constitutionality is therefore “supported by the strongest of presumptions and the widest latitude of judicial interpre tation, and the burden of persuasion .

. . rest[s] heavily upon” Bahlul to rebut it. Id

. at 637. Additionally:

[T]he detention and trial of petitioner[]

— ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger

— are not to be set aside

9 See Bahlul , 767 F.3d at 6 (“In 2003, the President designated Bahlu l eligible for trial by military commission and in 2004 military prosecutors charged him with conspiracy to commit war crimes.”).30
by the courts without the clear conviction that they are in conflict with the Constitution .

. . . Ex parte Quirin , 317 U.S. 1, 25 (1942) (emphasis added)

. 10

A. A RTICLE I

Bahlul begins with an uncontroversial premise: “law

- of

war military commissions” can try only those “offenses against the law of war.” Pet’r’s Br. 12 (quoting Bahlul , 767 F.3d at 7). But he then embroiders that premise with needlework that produces naught but knots. First, h e insists that the Congress’s power to codify a law

- of

- war offense derives exclusively from the Define and Punish Clause, U.S. C ONST . art I, § 8, cl. 10. Second, he argues that the Define and Punish Clause allows the Congress to codify a law

- of

- war offens e only if the international community has expressly agreed, element

- by

- element, that the offense is cognizable. And based on the Government’s concession that “conspiracy has not attained recognition at this time as an offense under customary international law,” Gov’t’s En Banc Br. at 34, Bahlul insists that “[t]he answer .

. . is both plain and

10 In Hamdan , the plurality flipped Quirin ’s “clear conviction” language, stating “[w]hen .

. . neither the elements of the of fense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous” because “[t]o demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in exces s of that contemplated either by statute or by the Constitution.” Hamdan , 548 U.S. at 602 (plurality). Justice Thomas, in dissent, correctly pointed out that “[t]his is a pure contrivance, and a bad one at that. It is contrary to the [clear conviction] presumption we acknowledged in Quirin .” Id. at 690 (Thomas, J., dissenting). In any event, the Quirin presumption, even by the Hamdan plurality’s lights, applies here because Bahlul’s offense is “defined by statute”

— namely, the 2006 MCA. See id. at 602 (plurality).31
uncontested”: conspiracy falls outside the Congress’s Article I power. Pet’r’s Br. 24.

Both of Bahlul’s embroidered premises are wrong. Even under the Define and Punish Clause alone, the Congress has the constitutional authority to codify conspiracy to commit war crimes by military commission. The international community does recognize that Bahlul violate d “the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience,” Quirin

, 317 U.S. at 35, and the Congress has done nothing more than provide for “the limits or precise meaning” of those principles in au thorizing the trial and sentencing by military commission for the violation thereof. 11 U.S. Op. Atty. Gen. 297, 299 (1865) (then

– Attorney General James Speed’s review of Lincoln conspirators’ trial).

Bahlul’s other embroidered premise fares no better. T he Congress does not derive its power to enumerate war crimes triable by military commission solely from the Define and Punish Clause. As the Supreme Court has recognized, the “capture, detention, and trial of unlawful combatants” are

“ ‘ important inciden ts of war , ’ ” Hamdi v. Rumsfeld , 542 U.S. 507, 518 (2004) (plurality) (quoting Quirin , 317 U.S. at 28 (emphases added) (alteration omitted)), and the Congress’s power to conduct war, in all of its “incidents,” necessarily derives from its several Article I war powers mutatis mutandis

. “ [U] nlike the Define and Punish Clause, .

. . the other Article I war powers clauses do not refer to international law and are not defined or constrained by international law.” Bahlul , 767 F.3d at 73 (Kavanaugh, J., concurri ng/dissenting).32

1. Define and Punish Clause

The Define and Punish Clause declares that “[ t ] he Congress shall have P ower .

. . [t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” U.S. C ONST . a rt. I, § 8, cl. 10. The power to “define” means that the Congress can “determine,” “decide” or “lay down definitely” offenses against the law of nations. Define

, O XFORD E NGLISH D ICTIONARY ( 2d ed. 1989) . The word “define”

— especially joined by the conjunc tion “and”

— has teeth.

At the Constitutional Convention, the debate over the Define and Punish Clause focused on whether the Congress should be given the power to do more than merely punish violations of the law of nations. An early draft of the Clause

rec ited that the Congress could “ d efine & p unish piracies and felonies on the high seas” but could only “ punish offenses agst. the law of nations.” Charles D. Siegal, Deference and Its Dangers: Congress’ Power to “Define .

. . Offenses Against the Law of Nat ions” , 21 V AND

. J. T RANSNAT ’ L L. 865, 876 (1988) (quoting 2 T HE R ECORDS OF THE F EDERAL C ONVENTION OF 178 7 , at 614 (Farrand ed. 1937) (Madison’s notes) (emphasis added)). Gouverneur Morris, a Pennsylvania delegate to the Constitutional Convention, “moved t o strike out ‘punish’ before the words ‘offenses agst. the law of nations’ ” so that they would be “ definable as well as punishable, by virtue of the preceding member of the sentence.” Id. (emphasis in original). James Wilson, another Pennsylvania deleg ate, objected, arguing that “[t]o pretend to define the law of nations” would give the drafters a “look of arrogance” and “make us ridiculous.” Id. (emphasis in original). In rejoinder, Morris explained that passive reliance on the international communit y was unworkable because “the law of nations [is] often too vague and deficient to be a rule.”33

Id. (alterations omitted) ; see also T HE F EDERALIST N O . 42, at 266 (Madison) (explaining that “define” power was necessary to secure “certainty and uniformity”)

. Morris’s approach carried the day, establishing that the Congress was not reflexively to follow other nations’ lead in formulating offenses but instead to contribute to their formulation. See Peter Margulies, Defining, Punishing, and Membership in the C ommunity of Nations: Material Support and Conspiracy Charges in Military Commissions , 36 F ORDHAM I NT ’ L L.J. 1

, 27 (2013) (“Morris’s concern suggested that Congress would play a valuable role by not merely defining the law of nations in a mechanical fashion , but refining that occasionally turgid and murky stream of disparate sources.”) ; cf. 2 T HE R ECORDS
OF THE F EDERAL C ONVENTION OF 1787, at 316 (Morris) (“define .

. . was said by others to be applicable to the creating of offences”)

. The Clause’s history an d text suggest two principles helpful to our interpretive task. The first is that international law derives from “a myriad of sources” and is “vast and always changing.” Margulies, supra , at 24; see also Bahlul

, 767 F.3d at 54 (Brown, J., concurring/diss enting) . Justice Joseph Story, in 1820, recognized the varying nature of international law, observing that “[o]ffences .

. . against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recogni sed by the common consent of nations,” and therefore the Congress was given the “power to define.” United States v. Smith , 18 U.S. 153, 159 (1820). The observation has stood the test of time. As declared at the Nuremburg International Military Tribunal that tried the World War II war criminals:

[I]nternational law is not the product of an international legislature, and .

. . international agreements .

. . have to deal with general principles34

of law.

. . . The law of war is to be found not only in treati es, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world.”

1 I NT ’ L M ILITARY T RIBUNAL (IMT), T RIAL OF THE M AJOR W AR C RIMINALS B EFORE THE I NTERNATIONAL M ILITARY T RIBUNAL : N UREMBERG 221 (1947).

The second principle is that “[t]he judiciary must give Congress extraordinary deference when it acts under its Define and Punish Clause powers.” Bahlul , 767 F.3d at 59 (Brown, J., concurring/dissenting). The Framers recognized that “[d]efining and enforcing the United States’ obligations under international law require the making of extremely

se nsitive policy decisions, decisions which will inevitably color our relationships with other nations.” Finzer , 798 F.2d at 1458 (emphasis added). “[S]uch decisions ‘are delicate, complex, and involve large elements of prophecy.

. . . They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.’ ” Id. at 1458

– 59 (quoting Chi. & S. Air Lines, Inc. v. Waterman Steamship Corp ., 333 U.S. 103, 111 (1948)). Indeed, “[j]udicial deference to such congressional defini tion is but a corollary to the grant to Congress of any Article I power.” Eldred v. Ashcroft , 537 U.S. 186, 218 (2003) (emphasis added) (quotation marks omitted).

The Supreme Court has remained faithful to these principles in the few instances in which it has examined the prosecution of war crimes by military commission. The first instance was Quirin . There, the Court had no difficulty35
concluding that the offenses charged against the Nazi saboteurs

— espionage and sabotage

— had “generally been accepted” as punishable by military commission under international law. Quirin , 317 U.S. at 3 1

– 36. The offenses with which the saboteurs were charged, according to the Quirin Court, resulted from conduct “plainly” recognized as violative of the law of war. Id. at 46

. But the precedent my colleagues cannot reconcile with their Define and Punish Clause holding is Application of Yamashita

, 327 U.S. 1 (1946). At the time Japanese Commander Yamashita assumed command, General MacArthur’s troops were waging their assault o n, and ultimate liberation of, the Philippines. Id. . at 31

– 32 (Murphy, J., dissenting). Although Allied victory was imminent, Yamashita’s army troops and naval forces “exterminate[d] a large part [more than 25,000] of the civilian population of Batangas Province.” Id. at 14 (majority op

. ). While the crimes committed by Yamashita’s soldiers and sailors were “recognized in international law as violations of the law of war,” Yamashita himself was not charged with participating in, or directing, their commi ssion but instead with “fail[ing] to discharge his duty as commander to control .

. . the members of his command.” Id . at 13

– 14. The difficulty, then, was that international law did not expressly provide that a war

- time commander could be prosecuted for failing to stop those under his command from committing war crimes. See Siegal,
supra , at 883 (noting international law “dealt only tangentially with the issue” and “no provision dealt specifically with a commander’s obligation to control his troops”). N evertheless, the Court affirmed Yamashita’s conviction and capital sentence.

In so doing, the Court framed the question as follows:36
[W]hether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to co ntrol the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal r esponsibility for his failure to take such measures when violations result.

Yamashita , 327 U.S. at 14

– 15. The Court looked to four international

- law sources for an answer. Although none directly addressed whether a commanding officer’s failure to affirma tively prevent his troops from committing war crimes was itself a war crime, the Fourth Hague Convention of 1907 established that armed forces could be considered lawful belligerents only if commanded by an individual “responsible for his subordinates.” I d. at 15 (quoting 36 Stat. 2295). Article 43 of the Annex to the Fourth Hague convention required a commander occupying enemy territory to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respe cting , unless absolutely prevented, the laws in force in the country .” Id. at 16 (quoting 36 Stat. 2306 ) (emphases added). 11 Notwithstanding the absence of international authority outlawing a commander’s failure to affirmatively prevent

11 The other two sources included Article 19 of the Tenth Hague Convention, which mandated that commanding officers of bombarding naval vessels must adhere to the principles of the Tenth Hague Convention, Yamashita , 327 U.S. at 15 (quoting 36 Stat. 2389), and Article 26 of the Geneva Red Cross Convention of 1929, which included rules related to wounded and sick in armies and made it the commander’s duty to provide “details of execution of” his duties under that Convention. Id . at 15

– 16 (quotin g 47 Stat. 2074, 2092).37

those under his co mmand from committing war crimes, the Court was not deterred, finding it “ evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations whic h it is the purpose of the law of war to prevent.” 327 U.S. at 15 (emphasis added). That “purpose .

. . would largely be defeated if the commander .

. . could with impunity neglect to take reasonable measures for their protection.” Id. “Hence the law o f war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.” Id. (emphasis added).

The holding was attacked

— molto agitato

— by the two dissenting Justices, see id . at 35 (Murphy, J., dissenting) (noting that “[i]nternational law ma[de] no attempt to define the duties of a commander of an army under constant and overwhelming assault; nor [did] it impose liability under such circumstances”); id. at 4 3 (Rutledge, J., dissenting), on the same ground Bahlul today urges. Justice Murphy’s criticism was sweeping: “Nothing in all history or in international law” established that “such a charge against a fallen commander of a defeated force” constituted a w ar crime. Id. at 35 (Murphy, J., dissenting) ; s ee also Eugene Kontorovich, Discretion, Delegation, and Defining in the Constitution’s Law of Nations Clause , 106 N W

. U. L. R EV . 1675, 1736 (2012) (charge in Yamashita was upheld “with some general and not qu ite on

point citations to the Hague Conventions.”). 12

12 Contrary to my colleagues’ suggestion, I do not rely on Yamashita as precedent that speaks directly to “the type of deference owed to Congress.” Maj. Op. 2 7 . Rather, in Yamashita , as in Quirin and Hamdan

, the Court noted that t he Congress did not “itself undertake[] to .

. . define” the law of war. See infra p. 4 4 . It is wrong, however, to suggest that38
Mindful of the two principles discussed above

— the inherently fluid nature of international law and the deference owed to the Congress’s power to define offenses against the law of nations

— we should exami ne whether the international community permits Bahlul to be tried by military commission rather than requiring that the charge against him, as defined by the Congress, matches an offense expressly recognized by the law of nations as a war crime.

Bahlul was convicted of “conspiracy to commit war crimes.” Bahlul , 767 F.3d at 5. 13 The 2006 MCA defines conspiracy as including any enemy combatant “who conspires to commit one or more” law

- of

- war offenses and “who knowingly does any overt act” in furtherance ther eof. 10 U.S.C. § 950v(28) (2006). As is common in the United States, the conspiracy offense set out in the 2006 MCA has two elements: an agreement to commit a war crime and an overt act in furtherance of that agreement. Cf. , e.g. , 18 U.S.C. § 371.

In ci vil

- law countries, conspiracy is instead viewed as a type of vicarious liability requiring proof of a completed offense. See Margulies, supra , at 84. Inchoate conspiracy has

Yamashita does not bear on the proper interpretation of the Define and Punish Clause. Far from it. Yamashita demonstrates th at the Supreme Court, implicitly rejecting the rigid international

- law veto my colleagues rely upon to vacate Bahlul’s conviction, recognizes that military commissions may constitutionally try offenses that, like inchoate conspiracy, reflect broad internat ional norms. My colleagues make no attempt to meet Yamashita on its terms and, given Yamashita ’s significance, the silence is deafening.

13 Bahlul was also convicted of material support and solicitation, which convictions were earlier vacated by the en ba nc court. See Bahlul , 767 F.3d at 5, 29, 31.39
been internationally recognized, however, in connection with certain war crimes. See 1 IMT, supra , at 224

– 26 (“common plan” to wage aggressive war); Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 4 (2009) (making punishable “conspiracy to commit genocide” as well as incitement or attempt to com mit genocide and complicity in genocide); Statute of the International Criminal Tribunal for Rwanda, art. 2 ( 1994 ) (same); Convention on the Prevention and Punishment of the Crime of Genocide, art. 3 (1948) (same). Additionally, international law recogniz es “joint criminal enterprise” (JCE). See Prosecutor v. Tadic

, Case No. IT

- 94

- 1

- A, Appeals Chamber Judgment, ¶ 220 (Int’l Crim. Trib. for the Former Yugoslavia July 15, 1999). JCE has three essential elements: “a plurality of persons participating in the criminal plan,” “the existence of a common purpose which amounts to or involves the commission of a crime,” and “the accused’s participation in the common design.” Giulia Bigi, Joint Criminal Enterprise in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the Prosecution of Senior Political and Military Leaders: The Krajišnik Case

, in 14 M AX P LANCK Y EARBOOK OF U NITED N ATIONS L AW 56 ( A. von Bogdandy & R. Wolfrum eds. 2010).

At one point, my colleagues suggest that the c onspiracy offense set out in the 2006 MCA is inconsistent (as opposed to not recognized in haec verba ) with international law. They note that “[t]he International Military Tribunal at Nuremberg considered and rejected conspiracy to commit war crimes as

an international law of war offense.” Maj. Op. 2 4 . The Nuremburg Tribunal, however, did recognize one inchoate conspiracy offense: “common plan” to wage aggressive war. 1 IMT

, supra , at 22 4

– 26 . The Congress is aware of this history and could have legitim ately concluded that the international community would agree that the September 11,40
2001 attacks are sufficiently abhorrent to impose inchoate

conspiracy liability. Importantly, the “jurisdiction” of the military commission has traditionally been “adapted in each instance to the need that called it forth,” Madsen v. Kinsella

, 343 U.S. 341, 347

– 48 (1952), 14 and international terrorism is “the global security challenge of the 21st Century.” Bahlul

, 767 F.3d at 61 (Brown, J., concurring/dissenting). Furtherm ore, international law has developed since the Nuremberg trials of seventy years ago. International tribunals now prosecute JCE, which “functions in ways virtually identical to” inchoate conspiracy. Allison Marston Danner & Jenny S. Martinez, Guilty Asso ciations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law , 93 C AL

. L. R EV

. 75, 119 (2005). Thus, the hesitation of certain Allies at Nuremberg

— that “overbroad application of the conspiracy principle may drag innocent people into the prosecution’s net,” T ELFORD T AYLOR , T HE A NATOMY OF THE N UREMBERG T RIALS : A P ERSONAL M EMOIR 553 (1992)

— appears to have been removed by the international community. Indeed, JCE allows the prosecution as war criminals of those who join together and participate in a criminal plan, which plan’s purpose “amounts to” the commission of a crime. Bigi, supra , at 56 ; see also Tadic, supra , at ¶ 199. Bahlul joined with other al Qaeda members and participated 15 in the plan to attack our

14 My colleagues fault my reliance on Madsen because “that case involved a military government commission, not a law of war military commission.” Maj. Op. 31

– 3 2 . But Madsen ’s reliance on Yamashita , in which case the Supreme Court expressly decided a law

- of

- war military commission had jurisdiction over a law

- of

- war offense, makes plain that Madsen ’s discussion of “the history of United States military commissions” encompasses Bahlul’s military commission. See Madsen

, 343 U.S. at 346.

15 The charges against Bahlul, on which he was convicted, alleged that he:41

a. traveled to Afghanistan with the purpose and intent of joining al Qaeda; b. met with Saif al ‘Adl, the head of the al Qaeda Security Committee, as a ste p toward joining the al Qaeda organization;

c. underwent military

- type training at an al Qaeda sponsored training camp then located in Afghanistan near Mes Aynak; d. pledged fealty, or “bayat,” to the leader of al Qaeda, Usama bin Laden, joined al Qaeda, a nd provided personal services in support of al Qaeda;

e. prepared and assisted in the preparation of various propaganda products, including the video “The Destruction of the American Destroyer U.S.S. Cole,” to solicit material support for al Qaeda, to recr uit and indoctrinate personnel to the organization and objectives of al Qaeda, and to solicit, incite and advise persons to commit Terrorism; f. acted as personal secretary and media secretary of Usama bin Laden in support of al Qaeda;
g. arranged for Muha mmed Atta, also known as Abu Abdul Rahman al Masri, and Ziad al Jarrah, also known as Abu al Qa’qa al Lubnani, to pledge fealty, or “bayat,” to Usama bin Laden; h. prepared the propaganda declarations styled as martyr wills of Muhammed Atta and Ziad al Jar rah in preparation for the acts of terrorism perpetrated by the said Muhammed Atta, Ziad al Jarrah and others at various locations in the United States on September 11,2001; i. at the direction of Usama bin Laden, researched the economic effect of the Sept ember 11, 2001 attacks on the United States, and provided the result of that research to Usama bin Laden; j. operated and maintained data processing equipment and media communications equipment for the benefit of Usama bin Laden and other members of the al Qaeda leadership. Charge Sheet 2

– 3; Findings Worksheet 3

– 4.42
country on September 11, 2001, which plan’s purpose

— to murder civilians

— “amounts to” the commission of a war crime.

Discernible in this brief discussion is a common animating principle that, notwithstanding the differences in descriptive labels or elements , individuals who join together to further the commission of a war crime violate the law of war. Granted, the Congress did not include proof of a completed war crime as an element of the conspiracy offense included in the 2006 MCA. My colleagues characte rize this omission as the creation of a new, purely “ domestic ” offense, as if it were made out of whole cloth. Maj. Op. 1 5 . In my view, the Congress has taken a preexisting international law

of

- war offense

— conspiracy to commit war crimes

— and eliminated o ne element. This it is constitutionally authorized to do within its “power to define” that Justice Story wrote about almost 200 years ago. Smith , 18 U.S. at 159; see also Bahlul , 767 F.3d at 57 (Brown, J., concurring/dissenting).

Nor does the Define and Punish Clause require the Congress to wait for the international community to catch up. The Yamashita Court did not play “Mother, may I” with established international law. See 327 U.S. at 15

– 16. Instead, it used what it viewed as the international law of war’s “presuppos[ition]” and “purpose” in order to uphold Yamashita’s conviction of “failure to prevent” war crimes, which failure “result[ed] in” war crimes it was “the purpose of the law of war to prevent.” Id. at 15

– 16 & n.3. Moreover, it upheld Ya mashita’s war crimes convictions for omissions to
act ; even more cognizable as war crime s , then, are Bahlul’s commissions

. See supra p p. 40

– 4 1 n.15

. And today, in our post

- Erie world, we recognize that there is no “transcendental body of law outside of a ny particular State.” Erie R. Co. v. Tompkins , 304 U.S. 64, 79 (1938). Law is created, not43
discovered, and it changes based on the actions of individual sovereigns. As one commentator puts it:

[I]nternational law has grown more fluid and responsive to s hifts in international consensus. The United States’ influence on international law has changed as well: the twentieth century saw the nation develop into a superpower, one that, when it trims its sails, can cause the winds of international law to blow in a new direction.

Note, The Offences Clause After Sosa v. Alvarez

- Machain, 118 H ARV

. L. R EV

. 2378, 2390 (2005); see also Stewart Jay, The Status of the Law of Nations in Early American Law , 42 V AND

. L. R EV

. 819 (1989). In my view, the Congress can,

conson ant with the Define and Punish Clause, track somewhat ahead of the international community. The United States can be the standard bearer and take the reins in resolving difficult questions of international law related to the ongoing threat of internationa l terrorism. See Bahlul , 767 F.3d at 61 (Brown, J., concurring/dissenting) (“Perhaps the United States should be a leader in this area

— a leader in international law commensurate with its status as a military leader in the war on
terror

— recognizing the off ense of conspiracy to commit acts of terrorism.”). 16

16 Unlike my colleagues, see Maj. Op. 2 4 , 26

– 2 7 , I do not find the dicta from United States v. Furlong , 18 U.S. 184 (1820), or United States v. Arjona

, 120 U.S. 479 (1887), on point. Furlong mer ely held that the Congress could not declare “murder to be piracy ” because “there exist well

- known distinctions between the crimes of piracy and murder” and “[t]hese are things so essentially different in their nature[] that not even the omnipotence of leg islative power can confound or identify them.” 18 U.S. at 196, 198. The same bright line cannot be drawn here because, unlike piracy

— “a crime of a settled and d eterminate nature”

— “[o]ffences44
My colleagues’ narrow view of the Congress’s authority under the Define and Punish Clause, requiring that a law

- of

war offense be already recognized by the international community on an element

- by

- element basis, follows, they believe, from Quirin and Hamdan . In my view, these two cases did not set the outer limits of the Congress’s authority because neither involved an exercise of the Congress’s power to “define” the law of nations. The military commissi ons in Hamdan and Quirin operated under section 821 (or its predecessor), giving military commissions jurisdiction of “offenses that by statute or by the law of war may be tried by military commissions.” 10 U.S.C. § 821 (emphasis added). By enacting this statute, however, the Congress did not “itself undertake[] to .

. . define” the law of war but instead left its definition to the courts. Quirin , 317 U.S. at 29

– 30. Accordingly, to determine whether an offense was covered by section 821, the Supreme Cou rt had to survey the “common law” of war, id . at 30; Hamdan , 548 U.S. at 593, which is necessarily limited to the offenses already recognized as triable by military commission. See Hamdan , 548 U.S. at 595 (plurality) (“The common law governing military

co mmissions may be gleaned from past practice and what sparse legal precedent exists.”); see also Quirin , 317 U.S. at

. . . against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined.” Smith , 18 U.S. at 159 , 1 61. Arjona

, moreover, stands only for the proposition that a statute need not include the phrase “offense against the law of nations” to be a valid exercise of the Congress’s Define and Punish Clause power. 120 U.S. at 488. It says nothing about the deference we owe the Congress when it exercises that
power. Cf. Boos , 485 U.S. at 329 (deferring to “congressional judgment in this delicate area”); Ware v. Hylton , 3 U.S. 199, 224 (17 96) (opinion of Chase, J.) (“If the right is conceded to be in Congress, it necessarily follows, that she is the judge of the exercise of the right, as to the extent, mode, and manner.”).45
29 (looking to what “our courts” have recognized as “violations of the law of war”).

In Hamdan , however, five Justices emphasized that their task would have been considerably easier had the Congress affirmatively defined conspiracy as an offense against the law of war. See 548 U.S. at 601

– 02 (plurality) (noting Congress had not “positively identified ‘conspiracy’ as a war crime”); id. at 612 (noting “the absence of specific congressional authorization”); id. at 595 (majority op

. ) (same); id . at 636 (Breyer, J., concurring) (“Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”). As Justice Ke nnedy put it:

I .

. . see no need to address the validity of the conspiracy charge

. . . . Congress may choose to provide further guidance in this area. Congress, not the Court, is the branch in the better position to undertake the “sensitive task of esta blishing a principle not inconsistent with the national interest or with international justice.”

Id . at 655 (Kennedy, J., concurring in part ) (quoting Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398, 428 (1964)).

Heeding this call, the Congress provided such guidance by enact ing the 2006 MCA, which expressly enumerates conspiracy as a law

- of

- war offense triable by military commission. See 10 U.S.C. § 950v(28) (2006). Inexplicably

, m y colleagues suggest that the Congress was not exercising its power to “define” the law of nations in enacting the challenged provision . Maj. Op. 2 6 ; Concur. Op. 4. The en banc court, however, necessarily recognized that the Congress

was exercising its power to “ define ” in the 2006 enactment

. See Bahlul , 767 F.3d at 13 (“[ T]he 2006 MCA .

. . provides the President the very power he sought to exercise in46

Hamdan

— the power to try the 9/11 perpetrators for conspiracy .

. . by military commission .

. . . We must heed this inter

- branch dialogue.” (citations omitted)); id. at 26 (“[T]he elements of the conspiracy charge were not defined by statute in Hamdan

. . . . Here, the Congress has positively identified conspiracy as a war crime.” (citation omitted))

. Moreover, the legislative history accompanying the 2006 MC A makes plain that the Congress viewed itself as acting pursuant to its authority under the Define and Punish Clause. 17 My colleagues rely on the Government’s failure to argue this point but we “retain [] the independent power to identify and apply the proper constructio n of governing law.” U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.

, 508 U.S. 439, 446 (1993). And, to the extent we consider the parties’ characterization s of what the Congress did , Bahlul himself concedes that the Congress “codified a con spiracy offense .

. . in a self

- conscious exercise of its power under the Define & Punish Clause.” Pet’r’s Br. 22 ; see also id. at 21

– 22 (“The Define & Punish Clause is the authority .

. . to which Congress looked when enacting the 2006 Act.” (citing H.R. R EP

. N O

. 109

- 664, pt. 1, at 24) ) ; id. at 25 (“Congress enacted

17 See, e.g.

, H.R. R EP

. N O

. 109

- 664, pt. 1, at 24 (2006) (“The offen ses defined here .

. . reflect the codification of the law of war into the United States Code pursuant to Congress’s constitutional authority to ‘Define and Punish * * * Offences against the Law of Nations.’ ”); id. , pt. 2, at 15 (“[T]he Committee finds th e authority for this legislation in article 1, section 8 of the Constitution, including clauses 10 [the Define and Punish Clause], 11, 14 and 18.”); S. 3930, 109th Cong. § 102 (2006) (“Congress makes the following findings: (1) The Constitution of the Unit ed States grants to Congress the power ‘To define and punish .

. . Offenses against the Law of Nations’, as well as the power ‘To declare War .

. . To raise and support Armies . . . <and> To provide and maintain a Navy’.

. . . It is in the national interes t for Congress to exercise its authority under the Constitution to enact legislation authorizing and regulating the use of military commissions to try and punish violations of the law of war.”).47
[the challenged provision] in explicit reliance on its power under the Define & Punish Cl ause.”). Contrary to my colleagues’ suggestion, Maj. Op. 2 6 , the Congress does not need to incant any magic words to invoke its “define” power. See Arjona , 120 U.S. at 488 (if “[a] statute defines the offense, .

. . there is no more need of declaring in the statute that it is . . . an offense [against the law of nations] than there would be in any oth er criminal statute to declare that it was enacted to carry into execution any other particular power”).

Bahlul’s conspiracy conviction thus stands on firmer constitutional footing than Hamdan’s, Quirin’s or even Yamashita’s convictions . The Congress has in fact exercised its Article I power to “define” conspiracy as an offense against the law of nations. The difference between this case and Hamdan is the difference between Justice Jackson’s first and third categories , respectively

. See Youngstown , 343 U .S. at 635

– 38 (Jackson, J., concurring). The Congress has used its expertise in national security and military affairs, see Finzer , 798 F.2d at 1458

– 59, which warrants the Judiciary’s utmost deference. Unlike my colleagues, I would not treat this case as another Quirin or Hamdan

. Every Justice in Hamdan who ruled against the Government necessarily recognized that a case like Bahlul’s would present a much easier question. Here, the Congress and the President have acted in concert, cloaking their actions “with all the attributes of sovereignty.” Youngstown , 343 U.S. at 635 n.2 (Jackson, J., concurring). We should “hesitate long before limiting or embarrassing such powers,” id. (emphasis omitted)

— much longer and harder than my colleagues have hesitated he re.
Accordingly, the Congress’s decision to define conspiracy to commit war crimes as an offense against the law of war triable by military commission is consistent with international law

— even if not a perfect match. Add to that48

the elevated level of defe rence we give the Congress in exercising its Article I powers and, to me, the inclusion of conspiracy to commit war crimes in the 2006 MCA is plainly within its authority under the Define and Punish Clause.

2. Necessary and Proper Clause

Next, the Necessa ry and Proper Clause augments the Congress’s already ample Define and Punish Clause authority to codify conspiracy as a law

- of

- war offense triable by military commission. The Supreme Court has made plain that, “in determining whether the Necessary and Pro per Clause grants Congress the legislative authority to enact a particular federal statute,” courts “ look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” United State s v. Comstock , 560 U.S. 126, 134 (2010); see also Gonzales v. Raich , 545 U.S. 1, 22 (2005) (statute falls within Necessary and Proper Clause if “Congress had a rational basis” for concluding statute implements another enumerated Article I power). The cons titutionally enumerated power here

— the Define and Punish Clause

— allows the Congress, at a minimum, to codify Bahlul’s object offenses ( e.g. , murder in violation of the law of war) as war crimes triable by military commission. See Quirin , 317 U.S. at 2 9

. Trying by military commission those who conspire to commit war crimes is “convenient,” “useful,” and “ ‘conducive’ to the .

. . ‘beneficial exercise’ ” of the Congress’s power to authorize the trial of substantive war crimes and doing so is abundantly rati onal. Comstock , 560 U.S. at 133

– 34 (quoting M’Culloch v. Maryland , 17 U.S. 316, 413, 418 (1819)).

In Comstock , the Supreme Court held that the Necessary and Proper Clause granted the Congress the authority to enact a civil

- commitment statute allowing the Department of Justice49
to detain certain federal prisoners beyond their release date. Id. at 129

– 30 . It based its holding on “five considerations”: (1) the Necessary and Proper Clause “grants Congress broad authority to enact federal legislation,” id. at 133; (2) the civil

commitment statute was a “modest addition” to preexisting law, id. at 137; (3) the Congress had sound reasons for the statute and the statute was “reasonably adapted” thereto, id. at 142

– 43; (4) the statute “properly accounts for state i nterests,” id. at 143; and (5) the connection between the statute and an enumerated Article I power was “not too attenuated” and the statute was not “too sweeping in its scope,” id. at 146. Here, each of these considerations indicates that the Congress ac ted within its constitutional authority.

First , as Comstock emphasized, the Congress’s power under the Necessary and Proper Clause is broad. See id. at 133; see also Armstrong v. Exceptional Child Center, Inc.

, 135 S. Ct. 1378, 1383 (2015) (Necessary and Proper Clause “vests Congress with broad discretion over the manner of implementing its enumerated powers”). Indeed, in M’Culloch , “Chief Justice Marshall emphasized that the word ‘necessary’ does not mean ‘absolutely necessary.’ ” Comstock , 560 U.S. at 134 (quoting M’Culloch , 17 U.S. at 413

– 15 (emphasis omitted) ). Rather, he wrote:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibit ed, but consist with the letter and spirit of the constitution, are constitutional.

M’Culloch , 17 U.S. at 421. For this reason, courts deciding whether the Necessary and Proper Clause supports a piece of legislation ask only “whether the statute constitut es a means that is rationally related to the implementation of a50
constitutionally enumerated power.” Comstock , 560 U.S. at 134; see also Sabri v. United States , 541 U.S. 600, 605 (2004) (using “means

- ends rationality” to describe necessary relationship). Moreover, the “choice of means” lies “primarily” with “the judgment of Congress” and “the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted, and the end to be attained, are matters for congressional determination alone.” Burroughs v. United States , 290 U.S. 534, 547

– 48 (1934).

Second , the Congress, through the 2006 MCA, legislated in an area that is exclusively federal, not simply one with a “long history of federal involvem ent.” Comstock , 560 U.S. at 149. The Supreme Court has long held that “the government of the United States has been vested exclusively with the power of representing the nation in all its intercourse with foreign countries,” Arjona , 120 U.S. at 483, and that states are “expressly prohibited from entering into any ‘treaty, alliance, or confederation.’ ” Id. (quoting U.S. C ONST

. art. I, § 10, cl. 1). In fact, the Define and Punish Clause itself recognizes that “ [ t ] he national government is .

. . responsib le to foreign nations for all violations by the United States of their international obligations.” Id.

Third , the Congress has indisputably sound reasons for codifying conspiracy as a war crime triable by military commission. As the Supreme Court has exp lained

, “[c]oncerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Callanan v. United States , 364 U.S. 5 87, 593 (1961). Bahlul himself recognized this fact at his military

- commission trial. He stated that he had “asked bin Laden for a martyrdom operation, a suicide operation; but51
[bin Laden] refused.” App. 194. He was instead put in charge of propaganda because, according to bin Laden, “recruiting people through media gets you more people than suicidal attacks.” Id. Furthermore, there is no principled reason to prevent the United States

— or any member of the international community, for that matter

— from subjecting to military justice those enemy combatants who plot, but fail, to commit war crimes. Once conspirators enter into an agreement, their “[c]riminal intent has crystallized, and the likelihood of actual, fulfilled commission warrants preventive

ac tion.” United States v. Feola , 420 U.S. 671, 694 (1975) (emphasis added).

Fourth , for the reasons discussed in the second point,
supra , the challenged provision does not infringe on any state interest.

Fifth , the link between the Congress’s decision to

au thorize trial of conspiracy to commit war crimes by military commission and its undisputed power to authorize trial of other war crimes by military commission is not attenuated. Indeed, under the challenged provision, an enemy combatant tried by military commission can be convicted of conspiracy only if the Government proves that he agreed to commit, and took acts in furtherance of committing, a war crime. There is no question that the object offenses underlying Bahlul’s conspiracy conviction

— which the Go vernment proved or Bahlul conceded

— violated the international law of war. See,
e.g. , Findings Worksheet 2 (Bahlul convicted of conspiring to “murder .

. . protected persons”); Rome Statute of the International Criminal Court, art. 8

, July 17, 1998, 2187 U .N.T.S. 90 (murder of civilians constitutes international war crime). Nor is the conspiracy provision of the 2006 MCA sweeping in scope.52
Bahlul makes no attempt to distinguish Comstock

, arguing instead that United States ex rel. Toth v. Quarles , 350 U.S. 11 (1955), forecloses application of the Necessary and Proper Clause. But Toth , a case involving the court

- martial trial of an Army veteran who had been honorably discharged, id . at 13, is beyond inapposite. In Toth , the Supreme Court rejected an attempt to use the Necessary and Proper Clause to supplement the Congress’s power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” Id . at 14 (quoting U.S. C ONST . art. I, § 8, cl. 14). The Court declared that the Make Rules Claus e “authorizes Congress to subject persons actually in the armed service to trial by court

martial for military and naval offenses.” Id. (emphasis added). It gave two reasons that the Congress had exceeded its Article I authority by trying Toth, by then a civilian, via
court

- martial: (1) the Necessary and Proper Clause did not empower the Congress “to deprive people of trials under Bill of Rights safeguards”; and (2) it was “impossible to think that the discipline of the Army [was] going to be disrupted, i ts morale impaired, or its orderly processes disturbed, by giving exservicemen the benefit of a civilian court trial when they [were] actually civilians.” Id. at 22.

Neither of these concerns exists here. There is no risk that a countervailing constituti onal right supersedes the Necessary and Proper Clause because Bahlul

— an alien enemy combatant outside the sovereign United States

— is not protected by the Bill of Rights. See infra Part II.B.2. In addition, the Supreme Court’s holding that Toth could not be tried by court

- martial was, by necessary implication, a determination that the trial of a citizen by court

- martial was not “rationally related” to the Congress’s authority under the53

Make Rules Clause. Comstock , 560 U.S. at 134. 18 The Army would gain no thing in discipline or morale by court

martialing an individual who was no longer a service member. See Toth

, 350 U.S. at 22. As just discussed, supra p p

. 50

– 51

, the Congress’s inclusion of conspiracy to commit war crimes as an offense triable by militar y commission is rationally related to its unquestioned authority to make war crimes themselves triable by military commission. And trying conspiracy by military commission is not inconsistent with international law. Cf. M’Culloch , 17 U.S. at 421 . Conspi racy to commit war crimes is not a purely “ domestic ” offense

, Maj. Op. 15 , but instead is in accord with the international community’s agreement that those who conspire to commit war crimes can be punished as war criminals. See supra Part II.A.1.

To the e xtent there is any doubt that the Congress has the power to “define” conspiracy as a war crime and “punish” it by military commission, the Necessary and Proper Clause is more than sufficient to remove it.

3. Broader War Powers

“[O]ut of seventeen specific paragraphs of congressional power, eight of them are devoted in whole or in part to specification of powers connected with warfare.” Johnson v. Eisentrager , 339 U.S. 763, 788 (1950). Specifically, the Congress has the power:

18 My colleagues’ reliance on Kinsella v. U nited S tates ex re l. Singleton

, 361 U.S. 234 (1960), and Reid v. Covert , 354 U.S. 1 (1957) (plurality), suffers from the same deficiency as Bahlul’s reliance on Toth . The only difference is that in Singleton and Reid , the subjects of the attempted courts martial were the c ivilian spouses of service members, not ex

servicemen. See Singleton , 361 U.S. at 235; Reid , 354 U.S. at 3.54

• “[T]o .

. . provide for the common Defence and general Welfare of the United States,” U.S. C ONST . art. I, § 8, cl. 1;

• “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” id. cl. 10;

• “To declare War, grant Letters of Marqu e and Reprisal, and make Rules concerning Captures on Land and Water,” id. cl. 11;

• “To raise and support Armies,” id. cl. 12;

• “To provide and maintain a Navy,” id. cl. 13;

• “To make Rules for the Government and Regulation of the land and naval Forces,” id. cl. 14;

• “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” id. cl. 15; and

• “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress,” id. cl. 16.

Supreme Court precedent, Col onel Winthrop’s influential treatise and our constitutional history all support the proposition that the Congress’s authority to specify law

- of

war offenses triable by military commission is also supported by its broader war powers.55
a. Supreme Court Prece dent

The Supreme Court has recognized the breadth of the Congress’s war powers, both individually and in combination. See, e.g.

, Rostker , 453 U.S. at 65 (“The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.”); Wayte v. United States , 470 U.S. 598, 612 (1985) (“Unless a society has the capability and will to defend itself from the aggressions of others, constitutional protections of any sort have little meaning. Recog nizing this fact, the Framers listed ‘provid[ing] for the common defence’ [ in the Preamble ] as a motivating purpose for the Constitution

. . . .”). The Congress’s war powers include the creation and use of military commissions. “Since our nation’s earlie st days, such commissions,” also called “our commonlaw war courts,” “have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.” Madsen , 343 U.S. at 346

– 47. Historically, “their procedure” and “the ir jurisdiction ” have been “adapted in each instance to the need that called [them] forth.” Id. at 347

– 48 (citing Yamashita , 327 U.S. at 18

– 23 (emphasis added)).

The Supreme Court has never expressly held that the Congress’s power to provide for law

- of

- war military commissions stems from the Define and Punish Clause alone. Instead, its limited jurisprudence indicates that the combined effect of the Congress’s war powers allows for military

commission trials as their need arises. A century before Madsen , four Justices opined that “the power of Congress .

. . to authorize trials for crimes against the security and safety of the national forces, may be derived from its constitutional authority to raise and support armies and to declare war.” Ex parte Mill igan , 71 U.S. 2, 142 (1866) (Chase, C.J., concurring in judgment ).56
Moreover, nothing in Quirin suggests that the Supreme Court intended to limit the Congress’s war powers to the Define and Punish Clause in setting the jurisdiction of military commissions. In fact, the Quirin Court took pains to emphasize that “[w]e have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.” 317 U.S. at 45

– 46. Quirin hel d only, on the facts of that case, that the Congress’s power under the Define and Punish Clause provided sufficient authority to support the charges made against the Nazi saboteurs. See id. at 46 (“We hold only that those particular acts constitute an off ense against the law of war which the Constitution authorizes to be tried by military commission.” (emphasis added)). Quirin did not purport to read out the Congress’s other war powers; in fact, it expressly recognized and listed them. See id. at 26. Th e Quirin Court also observed, consistent with Chief Justice Chase’s words nearly a century earlier, Milligan , 71 U.S. at 142 (Chase, C.J., concurring in judgment ), that “[a]n important incident to the conduct of war is the adoption of measures by the milit ary command .

. . to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.” Quirin , 317 U.S. at 28

– 29 (emphasis added).

To the extent Quirin ’s scope may be debat able, the Yamashita Court made plain that Quirin does not limit the Congress’s power to codify law

- of

- war offenses to the Define and Punish Clause. Although it recognized Quirin ’s holding that the Define and Punish Clause provided the Congress with suffic ient power to authorize the trial of the Nazi saboteurs by military commission, Yamashita

, 327 U.S. at 7, the Yamashita Court reiterated that military

- commission trials are “[a]n important incident to the conduct of war .” Id. at 11 (citing Quirin , 317 U.S . at 28). The Court continued:57
The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war. That sanction is without qualification as to the exercise of this authority so long as a state of war exists

— from its declaration until peace is pr oclaimed. The war power , from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy , at least in ways Congress has recognized, the evils which the military operations have produced.

Id. at 11

– 12 (emphases added) (citations omitted) ; see also Toth , 350 U.S. at 13

– 14 & n.4 (describing Yamashita as holding about Congress’s war powers); Howard S. Fredman, Comment, The Off enses Clause: Congress’ International Penal Power , 8 C OLUM

. J. T RANSNAT ’ L L . 279, 303 (1969) ( Yamashita “put the military prosecution of war criminals squarely within the war powers of Congress”).

Yamashita ’s words are not mere rhetoric. To determine whet her Yamashita had committed a war crime triable by military commission, the Supreme Court looked not only to international sources but also to the practice of “our own military tribunals” to conclude that Yamashita’s dereliction could be “ penalized ” as a v iolation of the law of war. Yamashita

, 327 U.S. at 16 (emphases added). In other words, the Yamashita Court cited domestic law to supplement , not merely “limit[],” the law of war. Cf. Maj. Op. 1 2 . Justice Murphy, in dissent, likewise examined whether “ the laws of58

war heretofore recognized by this nation

. . . impute[d] responsibility to a fallen commander for excesses committed by his disorganized troops while under attack.” Yamashita

, 327 U.S. at 37 (Murphy, J., dissenting) (emphasis added). Thus, bo th the Yamashita majority and dissent agreed that, in the absence of international agreement that an offense constituted a violation of the law of war, “the principal offenses under the laws of war recognized by the United States ” could also constitute cog nizable war crimes triable by military tribunal. Id. (emphasis added).

The shift from Quirin ’s reliance on the Define and Punish Clause to Yamashita ’s recognition that military

- commission jurisdiction of law

- of

- war offenses

— including law

- of

- war offenses denominated as such by the Congress

— derives from the broader war powers occurred in just four years, from 1942 to 1946. And it was that shift that led, six years later, to the Supreme Court’s conclusion that the “jurisdiction” of military commissions had traditionally been, and should be, “adapted in each instance to the need that called it forth.” Madsen , 343 U.S. at 347

– 48 (citing Yamashita , 327 U.S. at 18

– 23). There can be no doubt that the war on terror, begun in response to the September 11, 2001 at tacks, constitutes the next “need” to which the jurisdiction of law

- of

- war military tribunals must adapt. Id. Recognizing the adaptive nature of the Congress’s war powers, the Supreme Court has, in a variety of contexts, referred to the broad war powers of both political branches in conducting this ever

- evolving war. 19

19 See, e.g.

, Hamdan , 548 U.S. at 591 (listing broader war powers); Hamdi , 542 U.S. at 518 (plurality) (“The capture and detention of lawful combat ants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war.’ ” (quoting Quirin , 317 U.S. at 28 , 30 )); accord id. at 579 (Thomas, J.,59
I believe my colleagues have incautiously interfered with the reasoned decisions of the political branches based solely

on Quirin , a case in which the Supreme Court affirmatively failed to d raw the line they today draw. See 317 U.S. at 45

– 46. Because they apparently see Quirin as the alpha and omega of the Congress’s Article I war powers, they conclude that Bahlul’s conspiracy conviction cannot stand. But Yamashita belie s their conclusion that Quirin set the “contours” of law

- of

- war jurisdiction, Maj. Op. 1 1 , that those contours are defined exclusively by express international agreement, Maj. Op. 1 5

– 16 , and that “[t]he Supreme Court has adhered to Quirin ’s understanding of the meaning of th e ‘law of war’ for over seventy years.” Maj. Op. 1 3

. b. Winthrop’s Treatise

As discussed, neither the plain text of the Congress’s Article I war powers nor Supreme Court precedent examining the contours of law

- of

- war military

- commission jurisdiction
supp orts the “clear conviction” needed to invalidate Bahlul’s conspiracy charge. Quirin , 317 U.S. at 25. Secondary authority also weighs against him. Almost one hundred years ago, Colonel William Winthrop, considered the “Blackstone

dissenting) (“The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war p owers, and we lack the expertise and capacity to second

- guess that decision.”) ; Rasul v. Bush , 542 U.S. 466, 487 (2004) (Kennedy, J., concurring in judgment) (“The decision in Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not enter. The existence of this realm acknowledges the power of the President as Commander in Chief, and the joint role of the President and the Congress, in the conduct of military affairs.”)

.60
of Military Law,” Reid

, 354 U.S. at 19 n.38 (plurality), authored the definitive treatise on these matters. In his chapter “Authority and Occasion f or t he Military Commission,” Winthrop made plain that, “in general, it is those provisions of the Constitution which empower Cong ress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war , authorize the employment of all necessary and proper agencies for its due prosecution, from which th[e military] tribunal derives its original sanction.” W ILLIAM W I NTHROP , M ILITARY L AW & P RECEDENTS 831 (1920) (emphasis in original). According to Winthrop, a military tribunal “is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Co mmander

- in

- chief in war.” Id. (emphasis added).

Notwithstanding his reference to the “Law of War” as “intended [to refer to] that branch of International Law which prescribes the rights and obligations of belligerents,” he further observed that the “Law o f War in this country is not a formal written code, but consists mainly of general rules derived from International Law, supplemented by acts and orders of the military power and a few legislative provisions .” Id. at 773 (first emphasis in original). Wint hrop, it appears, had no issue with Congressional “supplementation” of law

- of

war offenses proscribed by international agreement. In his treatise, Winthrop listed 20 the “offences in violation of the

20 W INTHROP , supra , at 839

– 40:
[B]reaches of the law of non

- intercourse with the enemy, such as running or attempting to run a blockade; unauthorized contracting, trading or dealing with, enemies, or furnishing them with money, arms, provisions, medicines, &c.; conveying
to or from them dispatches, letters, or other communications, passing the lines for any purpose without a permit, or coming61
laws and usages of war” and described them as “those prin cipally, in the experience of our wars ,” that have been “cognizable by military tribunals.” W INTHROP , supra , at 839 (emphasis added). The most natural reading of Winthrop’s expertise

— a reading also consistent with Article I’s multiple war powers and the Supreme Court’s analyses in both Yamashita , 327 U.S. at 11

– 12 , and Madsen , 343 U.S. at 346

– 48

— is that the Define and Punish Clause is one grant of power to the Congress to determine the law

- of

- war offenses triable by military commission but it is not the e xclusive one.

back after being sent through the lines and ordered not to return; aiding the enemy by harboring his spies, emissaries, &c.; assisting his people or friends to cross the lines into his country, acting as guide to his troops; aiding the escape of his soldiers held as prisoners of war, secretly recruiting for his army, negotiating and circulating his currency or securities

— as counterfeit notes or bonds in the late war, hostile or disloyal acts, or publications or declarations calculated to excite opposition to the federal government or sympathy with the
enemy, &c.; engaging in illegal warfare as a guerilla, or by the deliberate burning, or othe r destruction of boats, trains, bridges, buildings, &c.; acting as a spy, taking life or obtaining any advantage by means of treachery; abuse or violation of a flag of truce; violation of a parole or of an oath of allegiance or amnesty; breach of bond give n for loyal behavior, good conduct, &c. ; resistance to the constituted military authority, bribing or attempting to bribe officers or soldiers or the constituted civil officials; kidnapping or returning persons to slavery in disregard of the President’s pr oclamation of freedom
to t he slaves, of January 1, 1863. Elsewhere, Winthrop included conspiracy among these offenses. See id. at 842 (“[c]onspiracy” is “both a crime against society and a violation of the laws of war”); W ILLIAM W INTHROP , A D IGEST OF O PIN IONS OF THE J UDGE A DVOCATE G ENERAL OF THE A RMY 328

– 29 (1880) ( “[c]onspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” is an “offence[] against the laws and usages of war”).62

c. Historical Practice

My colleagues note that our nation lacks “a long

- standing historical practice” of conspiracy trial and conviction by military commission, dismissing it as “thin .

. . and equivocal at best.” Maj. Op. 1 8 . There is no dispute that the “military commission .

. . was born of military necessity.” Hamdan

, 548 U.S. at 590. Fortuitously, military necessity has occurred only sporadically since the creation of the military commission. But what history exists demonstrates tha t, each time military necessity has resulted in subjecting war criminals to military court jurisdiction, conspiracy has been among the charges tried.

The majority takes issue with the example of the Lincoln conspirators, see W ILLIAM H. R EHNQUIST , A LL T HE L AWS B UT O NE : C IVIL L IBERTIES IN W ARTIME 14 4 ( 1998) (“Edwin Stanton personally directed the investigation of Lincoln’s assassination and the pursuit of the conspirators.”); id. at 145 (“The administration .

. . decided to try the alleged conspirators before a military commission rather than in the civil courts.”), concluding that the charging document

“ referred to conspiracy ” but did not in fact charge conspiracy. Maj. Op. 1 8

. According to the charging document, however, the Lincoln conspirators were charg ed with “ combining, confederating, and conspiring together

. . . to kill and murder

. . . Abraham Lincoln.” J. H OLT & T. E WING , C HARGE AND S PECIFICATION A GAINST D AVID E. H EROLD , ET AL

. (1865) (emphasis added); see also R EHNQUIST , supra , at 143 (“Obviously , Booth had not acted alone in this enterprise, and the stage was now set for the trial of those who were charged with having conspired with him.” (emphasis added)). The circumstances surrounding the Lincoln assassination also make indisputable that the d efendants could only have been charged with conspiracy. Because John Wilkes Booth was63
the lone assassin and was himself killed while a fugitive, the remaining eight necessarily could have been tried and convicted based solely on their conspiracy. One of those eight individuals

— Mary Surratt, who was hanged for her role

— participated in the conspiracy by allowing the others to use her boarding house as a meeting place. See R EHNQUIST , supra , at 165

. And two other Lincoln conspirators

— Michael O’Laughlin and Samuel Arnold

— could have been convicted only of inchoate conspiracy because, “[b]efore the final plot to assassinate Lincoln was hatched, O’Laughlin and Arnold appear to have abandoned the enterprise.” Id. at 162. Indeed, Arnold had apparently “told the others he wanted nothing more to do with the affair” one month before the assassination and, when Arnold withdrew, the remaining conspirators planned to kidnap

— not assassinate

— Lincoln. Id. at 160. Nevertheless, both O’Laughlin and Arnold were convicted

a nd sentenced to life imprisonment at the conclusion of their military

- commission trial. See id. at 162. Today, their withdrawal would have immunized them from the “postwithdrawal acts of [their] co

- conspirators,” Smith v. United States , 133 S. Ct. 714, 7 19 (2013), and they would not have been convicted of a completed offense . But abandonment without also preventing the object offense is not a defense to inchoate conspiracy. See M ODEL P ENAL C ODE § 5.03 (6)

. My colleagues respond by describ ing the military commission that tried the Lincoln conspirators as “a mixed martial law and law of war military commission.” Maj. Op. 19 . Its description, however, does not withstand scrutiny. True, at the time of the Lincoln conspirators’ trial, Washington, D.C., was under limited martial law. Nevertheless, the civilian courts remained open and operational. 11 U.S. Op. Atty. Gen. at 297 (“ M artial law had been declared in the District of Columbia, but the civil courts64
were open and held their regular sessions, and tra nsacted business as in times of peace

. ”). But because the military cannot exercise martial

- law jurisdiction unless civilian courts are closed, Milligan , 71 U.S. at 127, the Lincoln conspirators’ military court necessarily was purely a military commission with law

- of

- war (including conspiracy) jurisdiction. See also Hamdan , 548 U.S. at 597 (plurality) (noting that military courts have at times “ substituted for civilian courts at times and in places where martial law has been declared” (emphasis added)). 21 My colleagues , then, would retroactively undermine the constitutionality of at least two of the Lincoln conspirators’ convictions. Contra Bahlul , 767 F.3d at 25 (“t he Lincoln conspirators’ trial [i]s a particularly significant precedent” because it “was a matter of paramount national importance and attracted intense public scrutiny”)

. My colleagues’ attempt to distinguish Bahlul from the Nazi saboteurs in Quirin fares no better. Quirin marked the first time in our nation’s history that the Supreme Court

a ddressed the jurisdiction of a law

- of

- war military

21 My colleagues object to my r eliance on Milligan , having been decided after the military

- commission trial of the Lincoln conspirators. See Maj. Op. 19 . Three Lincoln conspirators petitioned for a writ of habeas corpus in 1868, however, relying on Milligan to argue that “military tri bunals have no authority to try civil offenses in districts where the regularly organized civil courts of the country are in undisturbed possession of all their powers.” Ex parte Mudd , 17 F. Cas. 954, 954 (S.D. Fla. 1868). The district court dismissed th e petition, Milligan notwithstanding. See id. (“I do not think that ex parte Milligan is a case in point here.”). Regardless whether the courts were open, the conspirators’ offense “transgressed the laws of war” and, thus, “the proper tribunal for the tr ial of those engaged in it was a military one.” Id .; see also id. (describing “charge on which” Lincoln conspirators were convicted as “conspiracy to commit the military crime which one of their number did commit and some of them .

. . more or less” parti cipated in).65

commission. See Haridimos V. Thravalos, History, Hamdan

, and Happenstance: “Conspiracy by Two or More to Violate the Laws of War by Destroying Life or Property in Aid of the Enemy” , 3 H ARV

. N AT ’ L S EC

. J. 223, 277 (2012) (referring to Quirin as “the first time in civil litigation” that “the Court explicitly recognized the existence of law

- of

- war jurisdiction enforceable through criminal proceedings conducted by pure law

- of

- war military commissions, a source of jurisdiction that had long been recognized by the practice of our own military authorities” (quotation marks omitted)). Before Quirin , the Executive Branch had provided most of the legal authority prescribing offenses cognizable as law

- of

- war offenses

. See id. at 240

– 41. Although the Supreme Court did not reach the conspiracy charge in Quirin , the petitioners’ conspiracy convictions secured the imprimatur of President Roosevelt. Because the President heads “a coequal branch of government” and “take[ s] the same oath we do to uphold the Constitution of the United States,” his judgment is entitled to deference. Rostker , 453 U.S. at 64 ; see also United States v. Nixon , 418 U.S. 683, 703 (1974) (“In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”)

. My colleagues also distinguish the conspiracy charges in Colepaugh v. Looney , 235 F.2d 429 (10th Cir. 1956). See Maj. Op. 20 . The Colepaugh petitioners, described as the “1944 Nazi Saboteurs,” were charged with nearly identical offenses to those of the Quirin petitioners, including conspiracy. See Colepaugh , 235 F.2d at 431; Thravalos,
supra , at 2 41. As with the Quirin saboteurs, the Colepaugh petitioners’ convictions arrived at the court with the Executive Branch’s full sanction. In fact, their convictions were deemed lawful by (1) a special Board of Review in the Office of the66
Judge Advocate Ge neral of the Army, (2) the Judge Advocate General himself and (3) President Harry Truman, who “personally approved” their convictions. Thravalos, supra , at 241

– 42 . The Tenth Circuit in Colepaugh affirmed “the charges and specifications before us.” 235 F .2d at 432 (emphasis added). My colleagues read Colepaugh as affirming only “the law of war acts of belligerency,” and not “addressing the conspiracy charge.” Maj. Op. 2 0 . But the Tenth Circuit put no such limitation on its holding. And even if it had, “[t]he U.S. Army continued to follow” Colepaugh “to try conspiracy in overseas theaters of war during the concluding months of World War II” 22 and to authorize trial of conspiracy by military commission during the Korean War. 23 Thravalos, supra , at 242

– 43

.

Rather than meet this

— to me

— robust history, my colleagues instead take issue with the Government’s (admittedly) paltry submission. See Maj. Op. 1 6

– 2 1 . But we are “called upon to judge the constitutionality of an Act of Congress

— ‘the gravest and most del icate duty that this Court is called upon to perform,’ ” Rostker , 453 U.S. at 64 (quoting

22 See United States Arm y Forces, Pacific, Regulations Governing the Trial of War Criminals (Sept. 24, 1945) (making “participation in a common plan or conspiracy” punishable by military commission in Pacific Theater of Operations during World War II); United States Arm y Forces, China, Regulations Governing the Trial of War Criminals (Jan. 21, 1946) (same for China t heater of o perations)

.
23 See U.N. C OMMAND , R ULES OF C RIMINAL P ROCEDURE F OR M ILITARY C OMMISSIONS OF THE U NITED N ATIONS C OMMAND at Rule 4 (Oct. 22, 1950) (making “all attempts to commit, or conspiracies and agreements to commit, as well as inciting, encouraging, aiding, abetting, or permitting violations of the laws and customs of war” committed during Korean War punishable by U.N. mi litary commission); Gen. Douglas MacArthur, Letter Order, Gen. HQ, U.N. Command, Tokyo, Japan, Trial of Accused War Criminals (Oct. 28, 1950) (adopting Rule 4)

.67
Blodgett v. Holden , 275 U.S. 142, 148 (1927) (Holmes, J.)), and I, accordingly, take issue with

— and indeed reject

— my colleagues’ languid dismissal of the Government’s submission without more.

In sum, I would hold that Bahlul has not carried his burden of establishing

— “clear[ly]” or otherwise

— that his military trial and conviction are unconstitutional. Quirin , 317 U.S. at 25. The Congress has ample authority under the Define and Punish Clause

— especially when supplemented by the Necessary and Proper Clause and the broader war powers and supported by judicial precedent, Winthrop’s treatise and history

— to authorize a military

- commission trial charging conspiracy to commit war crimes.

Before moving to Article III, one final point is in order. Both of my colleagues contend that, unless we stringently police the Congress’s Article I powers , the Government will possess “virtually unlimited authority” to try enemy combatants b y mil itary commission. Concur. Op. 8 ; see also Maj. Op. 26

– 2 7 . Yet, when it comes to issues of national security and foreign affairs, abstention

— not aggressive policing

— has always been our watchword. See Egan , 484 U.S. at 530; Latif , 677 F.3d at 1182

. In addition, several limitations on military commissions remain, including the other jurisdictional requirements identified by Winthrop, see Hamdan , 548 U.S. at 597

– 98 (plurality) (citing W INTHROP , supra , at 836

– 39) ; the Bill of Rights (for U.S. citizens) ; and

— at the very least

— the existence of an ongoing war , see Yamashita , 327 U.S. at 1 1

– 13. This last requirement should not be minimized. We would be wise to remember that, in a democracy like ours, not every question calls for a judicial

answer. See Mo. , K. & T. Ry. Co. of Tex. v. May , 194 U.S. 267, 270 (1904) (“[I]t must be remembered that legislatures are ultimate guardians of the liberties and welfare of the68
people in quite as great a degree as the courts.”); Al

- Bihani v. Obama , 619 F.3d 1, 11

– 12 (D.C . Cir. 2010) (Kavanaugh, J., concurring in denial of rehearing en banc ) (discussing potential “serious consequences, such as subjecting the United States to sanctions, undermining U.S. standing in the world community, or encouraging retaliation against U.S . personnel abroad” should political branches “ignore or disregard international

- law norms” but nonetheless maintaining that “in our constitutional system of separated powers, it is for Congress and the President

— not the courts

— to determine in the first in stance whether and how the United States will meet its international obligations” ).

B. A RTICLE III

The heart of Bahlul’s appeal is his claim that the Congress violated Article III when it made conspiracy triable by military commission. In my view, Bahlul invokes two separate provisions of Article III: the Judicial Power Clause, U.S. C ONST

. art. III, § 1, and the Criminal Jury Clause, id. § 2, cl. 3. I analyze both arguments below.

1. Judicial Power Clause

The Judicial Power Clause of Article III provide s:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

. . .

U.S. C ONST

. art. III, § 1. The Clause mirrors similar grants of power to the Co ngress in Article I and to the President in Article II. See id. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress .

. . .”); id. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President .

. . .”).69
Together, the Vesting Clauses erect “walls” that separate the three branches, Plaut , 514 U.S. at 239, and prevent them from “shar[ing]” their respective powers

, Nixon , 418 U.S. at 704. The walls, however, are not “hermetically sealed,” Stern , 131 S. Ct. at 2609, a nd they must bend a little to ensure we remain “a Nation capable of governing itself effectively

, ” Buckley v. Valeo , 424 U.S. 1, 121 (1976)

. S ee also Mistretta v. United States , 488 U.S. 361, 381 (1989) (“While the Constitution diffuses power the better t o secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” (quoting Youngstown , 343 U.S. at 635 (Jackson, J., concurring)); Mo. , K. & T. Ry , 194 U.S. at 270 (“Some play must be allowed for the join ts of the machine .

. . .”).

Section 1 of Article III vests the “judicial Power” in the federal courts, whose judges enjoy life tenure and fixed salaries. See U.S. C ONST

. art. III, § 1. The “judicial Power ,” as relevant here, extends to “Cases .

. . aris ing under .

. . the Laws of the United States.” Id

. § 2, cl. 1. Axiomatically, these provisions require Article III cases to be adjudicated by Article III judges in Article III courts. See Stern , 131 S. Ct. at 2608

– 09. And they restrain the Congress’s authority to assign the judicial power to federal tribunals lacking the insulating protections of Article III. See id.

Despite this analytic simplicity, however, “the literal command of Art. III .

. . must be interpreted in light of the historical context in which the Constitution was written, and of the structural imperatives of the Constitution as a whole.” N. Pipeline , 458 U.S. at 64 (plurality); see also id. at 94 (White, J., dissenting) (“ [A] t this point in the history of constitutional law th[e Arti cle III] question can no longer be answered by looking only to the constitutional text

. ”). The Supreme Court has recognized several historical

— albeit70

atextual

— “exception [ s ] ” to the Judicial Power Clause. See id. at 63

– 76 (plurality) . The deviations are justified by longstanding historical practice and “exceptional constitutional grants of power to Congress” over particular subject matters. I d. at 70 & n.25.

The military commission is one such exception. See Eisentrager , 339 U.S. at 785

– 90; Quirin , 317 U.S. at 39

– 41; Ex parte Vallandigham , 68 U.S. 243, 251

– 53 (1863). Like courts martial and occupational courts, the constitutionality of the law

- of

- war military commission is “well

- established.” Eisentrager , 339 U.S. at 786. Military tribunals predate th e ratification of our Constitution and were used

— without constitutional incident

— during the Revolutionary, Mexican

– American and Civil Wars. See Madsen , 343 U.S. at 346 & nn.8

– 9; Quirin , 317 U.S. at 31 & nn.9

– 10. Moreover, the Constitution vests broad war powers in the Congress, Eisentrager , 339 U.S. at 788, and military

- commission trials are part of waging war. See Yamashita , 327 U.S. at 11

– 12. Accordingly, placing the military commission outside the confines of Article III is “consistent with, rather t han threatening to, the constitutional mandate of separation of powers.” N. Pipeline , 458 U.S. at 64 (plurality) ; see also Maqaleh v. Hagel , 738 F.3d 312, 334 (D.C. Cir. 2013) (“The prosecution of our wars is committed uniquely to the political branches .

. . .”).

As discussed earlier, supra Part II.A , the Congress acted well within its Article I powers when it made conspiracy triable by military commission. The challenged provision therefore falls within a historical exception to the Judicial Power Clau se. The Supreme Court said it well more than 150
years ago:71
Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and

. . . the power to do so is given with out any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed,

. . . the two powers are entirely independent of each other.

Dynes v. Hoover , 61 U.S. 65, 79 (1857) (emphases added). For this r eason alone, Bahlul’s Article III challenge should fail.

My colleagues suggest that, because inchoate conspiracy is not an expressly recognized international law

- of

- war offense, the challenged provision falls outside the historic al safe harbor for military

- commission jurisdiction and therefore violates Article III. See Maj. Op. 30

– 3 2 ; Concur. Op. 3. But this syllogism is faulty, even under their crabbed view of the Congress’s Article I authority. A statute does not automatically violate the Judicial Powe r Clause simply because it falls outside a historic al exception to Article III. See Thomas v. Union Carbide Agric. Prods. Co. , 473 U.S. 568, 587 (1985) (“[P]ractical attention to substance rather than doctrinaire reliance on formal categories should infor m application of Article III.”); Schor , 478 U.S. at 851 (“Although [formalistic and unbending] rules might lend a greater degree of coherence to this area of the law, they might also unduly constrict Congress’ ability to take needed and innovative action p ursuant to its Article I powers.”). Instead

, we apply the general standard for Judicial Power Clause challenges: the Schor balancing test. See Schor , 478 U.S. at 851 (announcing “practical” test for courts to apply “in reviewing Article III challenges”). Criminal cases are not exempt from this framework

. See United States v. Seals , 13072
F.3d 451, 459 n.8 (D.C. Cir. 1997) (“While Schor addressed

. . . a state

- law counterclaim in an administrative reparation proceeding, there is no reason that the structur al constitutional analysis should be any different in the criminal context.” (citing Mistretta , 488 U.S. at 382

– 83 ))

. A nd they do not enjoy any special significance under Article III. As the Supreme Court has explained:

It was neither the legislative no r judicial view .

. . that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III
courts. Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.

Palmore v. United States , 411 U.S. 389, 402 (1973); see also id. at 407 (“ n either this Court nor Congress has read the Constitution as requiring .

. . every criminal prosecution for violating an Act of Congress[] to be tried in an Art. III court”).

The Supreme Court’s decision in Stern v. Marshall does not alter the an alysis. There, the Supreme Court held that the Congress could not constitutionally authorize the bankruptcy courts to hear a debtor’s compulsory state

- law counterclaim. S ee 131 S. Ct. at 2620. The Stern Court emphasized that its holding was “narrow” and “isolated.” Id. ; see also Sharif

, No. 13

- 935, slip op. at 16 (“An expansive reading of Stern

. . . would be inconsistent with the opinion’s own description of its holding.”). Its decision followed quite naturally from Northern Pipeline

— another bankruptc y case. See 131 S. Ct. at 2615 (“ Northern Pipeline

. . . directly covers this case.”).73
Despite the dissent’s concern that the majority had not faithfully applied the balancing approach from earlier cases, including Schor

, see Stern , 131 S. Ct. at 2622 (B reyer, J., dissenting), the Stern Court did not overrule, or even call into question, those precedents. See id. at 2615. In fact, the Court faithfully applied Schor ’s multi

- factor balancing approach. See id. at 2614

– 19; see also id. at 2621 (Scalia, J., concurring) (“I count at least seven different reasons given in the Court’s opinion for concluding that an Article III judge was required to adjudicate this lawsuit.”). Indeed, Sharif

— the Supreme Court’s latest pronouncement on the Judicial Power Clause

— confirmed that the Schor balancing test remains the correct

one

. See Sharif

, No. 13

- 935, slip op. at 12

– 15.

M y colleagues suggest , however, that the proper allocation of power between the Congress and the Judiciary turns on the latter’s interpretation of international law

. See Maj. Op. 1 1

– 1 5 ; Concur. Op. 3

– 7 . This approach is troubling enough under Article I; but the notion that international law dictates the operation of the separation of powers under our Constitution is outlandish. Indeed, the notion “runs counter to the democratic accountability and federal structure envisioned by our Constitution.” Hon. J. Harvie Wilkinson III, The Use of International Law in Judicial Decisions , 27 H ARV

. J.L. & P UB

. P OL ’ Y 423, 429 (2004). Instead, if the challenged provision falls outside a historical exception to Article III, we
must still assess it under Schor

. Schor ’s balancing test i s the only one that considers factors that are relevant to the separation

- of

- powers concerns underlying the Judicial Power Clause. We should look to separation

- of

- powers interests to decide separation

- of

- powers questions.

Applying the Schor balancing test here, I believe the challenged provision does not violate the Judicial Power Clause. Granted, on one side of the Schor balance, a military74
trial for conspiracy implicates “private,” as opposed to public, rights. See H ART & W ECHSLER ’ S THE F EDERAL C OURTS &

THE F EDERAL S YSTEM 336 (6th ed. 2009) (noting criminal cases are private rights cases under Schor ). This observation “does not end our inquiry,” Schor , 478 U.S. at 853, but it means our review must be “searching.” Id . at 854. Further, military commissions exercise many, but not all, of the “ordinary powers of district courts.” N. Pipeline , 458 U.S. at 85 (plurality). But see S harif , No. 13

- 935, slip op. at 11 n.9 (non

– Article III tribunal’s power to enter final judgment is relevant but not decisive).

I t is unclear whether Bahlul “consent ed ” to trial by military com mission

. Although he resisted being tried at all, he never rais ed an Article III objection to the military commission. Compare Sharif , No. 13

- 935, slip op. at 19 (“[T]he key inquiry is whether the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the non

Article III adjudicator .” (emphasis added) (quotation marks omitted)), with id. at 17 (“[T] he cases in which this Court has found a violation of a litigant’s right to an Article III decisionmaker have involved an objecting defen dant forced to litigate involuntarily before a non

- Article III court. ” (emphasis added))

, and United States v. Underwood , 597 F.3d 661, 669

– 73 (5th Cir. 2010) (in criminal case, failure to raise Article III object ion can constitute implied consent)

. In my view, “consent” from an enemy combatant like Bahlul does not meaningfully tip the scales one way or the other

. On the other side of the balance, several factors indicate that conspiracy to commit war crimes can be constitutionally tried by military commis sion. First, and most importantly, the75
Congress has subjected the military commission to judicial review. The 2009 MCA, like its 2006 predecessor, 24 allows the enemy combatants held at Guantanamo Bay, Cuba, to appeal their convictions to this Court

, 10 U. S.C. § 950g , after intermediate review by the CMCR, id. § 950f . We then review de novo all “matters of law ” that an enemy combatant preserves for appeal, id. § 950g(d)

, with the opportunity of certiorari review by the Supreme Court

, i d. § 950g(e). This

s afeguard “provides for the appropriate exercise of the judicial function in this class of cases” and keeps the military commission within the bounds of law. Crowell v. Benson
, 285 U.S. 22, 54 (1932) . As the Supreme Court has repeatedly recognized, the av ailability of de novo review of questions of law by an Article III court substantially allays any Judicial Power Clause concerns with a given statutory arrangement. See Schor , 478 U.S. at 853; Union Carbide , 473 U.S. at 592; Crowell , 285 U.S. at 54; see a lso N. Pipeline , 458 U.S. at 115 (White, J., dissenting) (“the presence of appellate review by an Art. III court will go a long way toward insuring a proper separation of powers”). Granted, we review the military commission’s verdict

— i.e. , its findings of fact

— only for “sufficiency of the evidence.” 10 U.S.C. § 950g(d). But, contrary to my colleagues’ assertion, Maj. Op. 3 3

– 3 4 , Article III requires very little

— perhaps zero

— judicial review of ordinary questions of fact

. See Crowell , 285 U.S. at 51 (“[I]n [private rights] cases .

. ., there is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges

. ”) ; The Francis Wright , 105 U.S. 381, 386 (1881)

24 The 2009 MCA, Pub. L. No. 111

- 84, 123 Stat. 2190, was enacted in October 2009, after Bahlul’s military

- commission trial but before his appeal to the CMCR. See United States v. Bahlul , 820 F. Supp. 2d 1141, 1156

– 57 (USCMCR 2011).76
( Congress has “power to limit the effect of an appeal to a review of the law as applicable to facts finally determined below”)

. The deferential review provided by the 2 0 09 MCA thus goes beyond the constitutional minimum

. See , e.g. , Estep v. United States

, 327 U.S. 114, 122 (1946) (upholding “no basis in fact” standard for jurisdictional facts and zero review for ordinary facts in criminal case); Union Carbide

, 473 U.S. at 592

– 93 (review for “fraud, misconduct, or misrepresentation” satisfie s Article III); Schor , 478 U.S. at 853 (review for “weight of the evidence” satisfie s Article III) ; Crowell , 285 U.S. at 48 (“not supported by evidence” standard satisfies Article III) ; see also Jackson v. Virginia

, 443 U.S. 307, 318

– 19 (1979) (“sufficiency of the evidenc e” standard satisfies due

- process requirements for criminal

cases ).

Second, the military commission has very limited jurisdiction under the 2006 MCA. It “deals only with a particularized area of law”

— namely, the law of war. Schor

, 478 U.S. at 852 (quotat ion marks omitted). The 2006 MCA enumerates, in total, 30 war crimes, 10 U.S.C. §§ 950r, 950u

– 950v (2006), and only an “alien unlawful enemy combatant” is subject to military

- commission trial

, id. § 948c. No one disputes that military commissions can

— con sistent with Article III

— adjudicate expressly recognized int ernational law

- of

- war offenses. An inchoate offense like conspirac y adds only a “narrow class of .

. . claims .

. . incident to the [military commission’s] primary, and unchallenged, adjudicative function.” Sharif , No. 13

- 935, slip op. at 13. This is not a case in which the Congress “created a phalanx of

non

– Article III tribunals equipped to handle the entire business of the Article III courts.” Schor , 478 U.S. at 855. Nor does the commission possess unbounded jurisdiction “reaching any area of the corpus juris

. ” Stern , 131 S. Ct. at 2615. Here, “the magnitude of any intrusion on the Judicial77
Branch can only be termed de minimis .” Schor , 478 U.S. at 856.

T hird, “the concerns that drove Congr ess to depart from the requirements of Article III” tilt in favor of the challenged provision ’s constitutionality. Id . at 851. The Congress chose the military commission over Article III court for one overriding reason: national security. Among the disc ussed concerns were the potential disclosure of highly classified information 25 ; the efficiency of military

- commission proceedings 26 ; the military’s expertise in matters of national security 27 ; the inability to prosecute enemy combatants due to speedy

- trial v iolations 28 ; the inadmissibility of certain forms of evidence 29 ; and, later, the risk of terrorist attacks on

25 See, e.g. , 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen. Frist); id. (statement of Sen. Warner); 152 Con g. Rec. H7522 (Sept. 27, 2006) (statement of Rep. Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep. Hunter); 152 Cong. Rec. S10354 (Sept. 28, 2006) (statement of Sen. Bond); id. (statement of Sen. McConnell); id. (statement of Sen. Frist).

26 See, e.g. , 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of Rep. Hunter); id. (statement of Rep. Sensenbrenner); id. (statement of Rep. Cardin); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep. Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) ( statement of Rep. Sensenbrenner).

27 See, e.g. , 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen. Graham); id. (statement of Sen. Kyl); 152 Cong. Rec. S10354 (Sept. 28, 2006) (statement of Sen. Graham); id. (statement of Sen. Cornyn); id. (statemen t of Sen. Sessions).

28 See 10 U.S.C. § 948b(d)(1)(A) (2006) (making “speedy trial” rules inapplicable in military commissions). See generally Scott L. Silliman, Prosecuting Alleged Terrorists by Military Commission: A Prudent Option , 42 C ASE W. R ES

. J. I NT ’ L L. 289, 294 (2009).

29 See, e.g. , 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen. Graham); 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of Rep.78

domestic courts. 30 Unlike my concurring colleague, who believes that Article III courts are well

- suited to try conspirators like Bahlul, see Concur. Op. 8

– 9 , I would defer to the choice made by the Congress

— an institution with real

world expertise in this area that has rejected a one

- size

- fits

- all choice of forum. In any event, the Congress’s concerns are plainly legitimate; indeed, “no governmental interest is more compelling than the security of the Nation.” Haig v. Agee

, 453 U.S. 280, 307 (1981). And these legitimate interests demonstrate without question that the Congress did not “transfer jurisdiction to [a] non

- Article III tribunal[] for the
p urpose of emasculating constitutional courts.” Schor , 478 U.S. at 850 (emphasis added) (alterations and quotation marks omitted).

Finally, the system that the Congress has established

— military

- commission proceedings in the Executive Branch, appellate revi ew in the Judicial Branch

— “raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.” Schor , 478 U.S. at 856. As the Supreme Court explained in Mistretta , “encroachment and aggrandizement” are the hallmarks of cases in which the Court has invalidated a congressional statute for violating the separation of powers. 488 U.S. at 382. “By the same token,” the Supreme Court has “upheld statutory provisions that to some degree commingle the functions of the Branches , but that pose no danger of either aggrandizement or

Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep. Hunter).

30 See, e.g. , 155 Cong. Rec. S5589 (May 19, 2009) (statement of Sen. McConnell); id. (statement of Sen. Johanns); id. (statement of Sen. Martinez); 155 Cong. Rec. S5650 (May 20, 2009) (statement of Sen. Thune); 155 Cong. Rec. S7509 (Jul. 15, 2009) (statement of Sen. Inhofe)

.79

encroachment.” Id. (citing, as examples, Morrison v. Olson

, 487 U.S. 654 (1988) and Schor , 478 U.S. 833). In the 2006 MCA, the Congress has assigned conspiracy to the military for trial and sentencing and to the Judiciary for review “without appreciable expansion of its own power,” Schor , 478 U.S. at 856

– 57, and while “retain[ing] for itself no powers of control or supervision,” Morrison , 487 U.S. at 694. This is not the sort of legislation that raise s separation

- of

- powers hackles.

Notably, the Supreme Court has found a violation of the Judicial Power Clause in only two cases

— both involving bankruptcy courts

. See Stern

, 131 S. Ct. at 2620 ; Northern Pipeline

, 458 U.S. at 87 (plurality) . Outside the ba nkruptcy context, however, the Court has repeatedly upheld congressional statutes against such attacks. See, e.g.

, Mistretta , 488 U.S. at 393

– 97 (U.S. Sentencing Commission); Schor , 478 U.S. at 851

– 58 (CFTC); Union Carbide , 473 U.S. at 582

– 93 (mandatory a rbitration); Palmore , 411 U.S. at 407

– 10 (District of Columbia courts); Williams v. United States

, 289 U.S. 553, 568

– 81 (1933) (Court of Claims); Crowell , 285 U.S. at 48

– 65 (workmen’s compensation board); Ex parte Bakelite Corp. , 279 U.S. 438, 452

– 61 (1929 ) (Court of Customs Appeals); Dynes , 61 U.S. at 79 (courts martial); Am. Ins. Co. v. 356 Bales of Cotton , 26 U.S. 511, 546 (1828) (territorial courts). The bankruptcy cases are an anomaly in this area of the law and I do not believe they provide a relevan t analog

. M ilitary commissions are a reco gnized exception to Article III whereas bankruptcy courts are not

. See N. Pipeline , 458 U.S. at 71 (plurality) ( Congress’s bankruptcy power is not “exceptional grant of power” subject to Article III exception ); St ern , 131 S. Ct. at 2614 (bankruptcy courts do not fall under “public rights” exception to Article III). This case , then, is much easier than Stern and Northern Pipeline : the historic al exceptions to Article III are exceptions80
not because they are close to the constitutional line but because they are far from it. See Dynes , 61 U.S. at 79. Historically, courts martial and military commissions are thought to pose no Article III problem, notwithstanding they are subject to little judicial review. See 28 U.S .C. § 1259; Burns v. Wilson , 346 U.S. 137, 140

– 41 (1953) (plurality); Vallandigham , 68 U.S. at 252

– 53. T he availability of de novo appellate review under the 2009 MCA keep s the challenged provision in the constitutional fold, even if, arguendo

, inchoate c onspiracy were to venture beyond the historical Article III exception for military

- commission jurisdiction.

For these reasons, I believe the challenged provision satisfies the Schor balancing test. Moreover, irrespective of Schor , the statute falls comfor tably within the Congress’s Article I authority and, concomitantly, under the military

commission exception to Article III. Bahlul’s Judicial Power Clause challenge therefore fails.

2. Criminal Jury Clause

In addition to ensuring the separation of powers , Article III also protects individual rights. The Criminal Jury Clause broadly requires that “[t]he Trial of all Crimes .

. . shall be by Jury .

. . in the State where the said Crimes shall have been committed” or where the “Congress may by Law have dire cted.” U.S. C ONST

. art. III, § 2, cl. 3. Like the Sixth Amendment, the Criminal Jury Clause preserves the right to a jury only as it existed at common law. Quirin , 317 U.S. at 39 (“[I]t was not the purpose or effect of § 2 of Article III, read in the li ght of the common law, to enlarge the then existing right to a jury trial.”).

Bahlul

— an enemy combatant tried by military commission

— has no right to a jury. At common law, “trial by a jury” was a “familiar part [] of the machinery for criminal81

trials in th e civil courts.” Id. But it was “unknown to military tribunals, which are not courts in the sense of the Judiciary Article, and which in the natural course of events are usually called upon to function under conditions precluding resort to such procedure s.” Id. (citation s omitted)

. For example, the Continental Congress passed a resolution ordering the trial of alien spies in military courts without a jury. See id. at 41 (citing Resolution of the Continental Congress of Aug. 21, 1776, 5 J. C ONT ’ L C ONG

. 693). The resolution

— a “contemporary construction” of the Constitution “entitled to the greatest respect”

— manifests that the Founders did not see juries as a limitation on military

- commission trials. Id. at 41

– 42; see also Kahn v. Anderson , 255 U.S. 1, 8 (1921) (rejecting idea that military courts must use jury because it would

“ directly den[y] the existence of a power [that] Congress exerted from the beginning”). Moreover, members of our

own military are tried by court martial without a jury; thus, the Constitution plainly presents “no greater obstacle” to trying enemy combatants by military commission. Quirin

, 317 U.S. at 44; see also Whelchel v. McDonald , 340 U.S. 122, 127 (1950) (“The right to trial by jury guaranteed by the Sixth Amendment is not ap plicable to trials by courts

- martial or military commissions.”); Sanford v. United States , 586 F.3d 28, 35 (D.C. Cir. 2009) (“[T]he Sixth Amendment right to a criminal jury trial does not, itself, apply to the military.”). As discussed earlier, supra Part II.A, the Congress has the Article I authority to require Bahlul to be tried by military commission. He therefore has no right to a jury. See Quirin

, 317 U.S. at 40 (“[ s ection] 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission”); id. at 41 (“trials before military commissions .

. . are .

. . no[t] within the provisions of Article III, § 2”); accord Colepaugh , 235 F.2d at 433 (“ Quirin

. . . removes any doubt of the82
inapplicability of the Fifth or Sixth Amendments to trials before military commissions.”).

Bahlul contends, however, that the Criminal Jury Clause

, like the Judicial Power Clause, is a structural limitation on military

- commission jurisdiction. Specifi cally, he believes

— and my colleagues at one point appear to agree, see Maj. Op. 1 4

— that a military commission has no jurisdiction of offenses triable by jury at common law. Bahlul is mistaken. The right to a jury is not a “structural” constraint but an i ndividual right that can be both forfeited and waived. Johnson , 520 U.S. 461, 465

– 66 (1997); see also B&B Hardware

, 135 S. Ct. at 1304 ( jury

- trial right “ does not strip competent tribunals of the power to issue judgments,” no matter “the nature of the

com petent tribunal ”); Gosa v. Mayden , 413 U.S. 665, 677 (1973) (plurality) (denial of jury

- trial right does not deprive military tribunal of jurisdiction or render its judgments void). Even Schor recognized this difference:

[A]s a personal right, Article III ’s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil and criminal matters must be tried. See,
e.g. , Duncan v. Louisiana , 391 U.S. 145, 158 (1968) (waiver of right to trial by jury in criminal case).

478 U.S. at 848

– 49 (some citations omitted). The right to a jury

— regardless of its location in Article III

— is no more a structural limitation on military

- commission jurisdiction than

ar e the myriad personal safeguards in the Bill of Rights. Cf. Seals , 130 F.3d at 456 n.3 (“constitutional safeguards associated with Article III supervision of federally

- indicting grand juries .

. . implicate[] personal, not structural, constitutional right s” (citations omitted)).83
The Supreme Court’s Seventh Amendment jurisprudence makes doubly clear that the right to a jury is not an independent constraint on the Congress’s authority to use

non

– Article III tribunals. In Granfinanciera , the petitioners
argu ed that their Seventh Amendment right to a civil jury prevented the Congress from assigning certain claims to the bankruptcy courts. See 492 U.S. at 36

– 37. According to the Court, whether the petitioners had a right to trial by jury “requires the same an swer as the question whether Article III allows Congress to assign adjudication .

. . to a non

– Article III tribunal.” Id. at 53 (emphasis added). In other words, the Judicial Power Clause

— not the Seventh Amendment

— is the only structural limit on the Cong ress’s authority. “[I]f Congress may assign the adjudication .

. . to a non

- Article III tribunal, then the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” Id. at 53

– 54 (emphasis added). The same is true here. As noted, supra Part II.B.1, the Judicial Power Clause allows the Congress to authorize the trial of conspiracy by military commission. Accordingly, Bahlul has no right to a jury and the Criminal Jury Clause poses “no independent bar” to his conviction. Id. at 54. 31

Even if the Criminal Jury Clause did limit military

commission jurisdiction, it has no application here because Bahlul is neither a U.S. citizen nor present on U.S. soil. The Supreme Court has repeatedly held that the Constitution offers no protection to noncitizens outside the United States. See, e.g.

, Eisentrager , 339 U.S. at 784

– 85; United States v. Verdugo

– Urquidez , 494 U.S. 259, 273

– 75 (1990); Zadvydas

31 Notably, the Hamdan Court cited only the Judicial Power Clause, not the Criminal Jury Clause, as a limitation on the Congress’s authority to employ military commissions. See 548 U.S. at 591.84

v. Davis , 533 U.S. 678, 693 (2001); Kwong Hai Chew v. Colding , 344 U.S. 59 0, 597 n.5 (1953); United States v. Belmont , 301 U.S. 324, 332 (1937); United States v. Curtiss

– Wright Export Corp. , 299 U.S. 304, 318 (1936). This limitation on the Constitution’s extraterritorial reach encompasses the right to a jury trial in a criminal case. See,
e.g. , Eisentrager , 339 U.S. at 784

– 85; Balzac v. Porto Rico

, 258 U.S. 298, 304

– 05 (1922); Dorr v. United States , 195 U.S. 138, 149 (1904); Territory of Hawaii v. Mankichi , 190 U.S. 197, 218 (1903). Granted, in Reid v. Covert , a plurality of t he Supreme Court agreed that the right to a jury extends to U.S. citizens abroad. See 354 U.S. at 7. But “[s]ince [Bahlul] is not a United States citizen, he can derive no comfort from the Reid holding.” Verdugo

- Urquidez , 494 U.S. at 270. The cases Bah lul relies on to support his jury

- right argument suffer from the same fatal flaw: all involved U.S. citizens. See Reid , 354 U.S. at 3 (citizen wives of U.S. soldiers); Toth

, 350 U.S. at 13 (U.S. soldier); Quirin , 317 U.S. at 20 (Nazi saboteur with U.S. ci tizenship through his parents); Milligan

, 71 U.S. at 107 (U.S. citizen living in Indiana).

In Boumediene v. Bush , the Supreme Court held “only” that the Suspension Clause protects enemy combatants held at Guantanamo Bay. 553 U.S. 723, 795 (2008). This Co urt has declined to extend Boumediene beyond its narrow holding. See Maqaleh , 738 F.3d at 336 n.16 (“As a novel constitutional development, we are loath to expand Boumediene ’s reach without specific guidance from the Supreme Court, particularly where expa nsion would carry us further into the realm of war and foreign policy.”); Kiyemba v. Obama , 555 F.3d 1022, 1032 (D.C. Cir. 2009) (“ Boumediene

. . . specifically limited its holding to the Suspension Clause”). And we lack the authority to read Boumediene a s overruling sub silentio Supreme Court precedent on the nonavailability of jury rights to noncitizens abroad. See Rodriguez de Quijas85
v. Shearson/Am. Exp., Inc. , 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, ye t appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of

ov erruling its own decisions.”).

Bahlul has no constitutional right to a ju ry and neither the Criminal Jury Clause nor the Judicial Power Clause of Article III can invalidate his conspiracy conviction.

C. E QUAL P ROTECTION & F IRST A MENDMENT
Bahlul’s two remaining challenges are frivolous. He contends that the 2006 MCA violates t he equal protection component of the Fifth Amendment Due Process Clause because it applies only to aliens, not U.S. citizens, and that he was convicted because of his speech in violation of the First Amendment. Two of my colleagues have already considered these arguments and rejected them. See Bahlul , 767 F.3d at 62 (Brown, J., concurring/dissenting); id. at 75

– 76 (Kavanaugh, J., concurring/dissenting). I fully endorse their reasoning.

For the foregoing reasons, I respectfully dissent.