United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2014 Decided June 12, 2015

No. 11-1324

ALI HAMZA AHMAD SULIMAN AL BAHLUL,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

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 petitioner. 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 Historians 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
2

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 Education 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: HENDERSON, ROGERS, and TATEL, Circuit Judges

Opinion for the Court by Circuit Judge ROGERS

Concurring opinion by Circuit Judge TATEL

Dissenting opinion by Circuit Judge HENDERSON

ROGERS, 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
3

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 jurisdiction 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 Clause 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 jurisdiction 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
4

violation of Article III and is not waivable or forfeitable.

The Supreme Court held in Schor that an Article III

structural claim of encroachment on the judicial power was not

subject to waiver. Id. at 850–51. The Court explained 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 element of the constitutional system of checks

and balances.” Id. at 850 (internal quotation 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. 
5

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. There, the Court rejected waiver of

Article III § 1 claims “for the same reason” that parties cannot

waive Article III § 2 jurisdictional 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 from 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
6

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 the 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 Article 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 Branch . . . . ‘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.)));
7

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).
8

Our dissenting colleague also misinterprets Sharif to

suggest that structural Article III claims can be forfeited. See

Dis. Op. 15–16. Having decided 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 structural 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.
9

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 Constitution mandates that ‘[t]he

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.’” Stern, 131 S. Ct. at

2608. Section 2, clause 1, provides that “[t]he judicial Power
10

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.CONST.

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 flows 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. CONST. art. III, § 1). 

If a suit falls within the judicial power, then “the

responsibility for deciding that suit 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. territories 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
11

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 United 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 nature as they might arise in

the future, but not to bring 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
12

consistent interpretation,” the Court 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 founding of our government” and

continued in the Articles of War, Article III has been construed

“as not foreclosing trial by military 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
13

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. CONST.

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 “plainly 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
14

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 offense, “[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 applied 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
15

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 question, 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 international law of war.” Appellee’s

Br. 54. Yet the Supreme Court in Quirin concluded otherwise. 

It looked to “authorities on International 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. 
16

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 practice 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 belligerents 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. CONST. art. II, § 2, cl. 3, based on a lengthy and dense

historical practice. Upon identifying “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
17

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 statutes viewed those offenses as

punishable under the international law of war. The 1806 statute

“imposed the death penalty on alien spies ‘according to the law

and usage of nations, by sentence of a general court martial.’” 

Quirin, 317 U.S. at 41 (quoting Act 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 JOURNALS OF CONGRESS 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, MILITARY LAW AND PRECEDENTS 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,

INTERNATIONAL LAW 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 reenacted the spying and aiding

the enemy statutes on multiple occasions, see, e.g., Act of June

4, 1920, Pub. L. No. 66-242, 41 Stat. 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, CHARGE AND

SPECIFICATION AGAINST DAVID E. HEROLD, 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,

THE LAW OF CRIMINAL CONSPIRACIES AND AGREEMENTS 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, MILITARY

LAW AND PRECEDENTS, 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, MILITARY LAW AND PRECEDENTS, at 839 & n.5. The

dissent further ignores Winthrop’s explanation that conspiracy

was a “civil crime” or “crime against society” and not a law of

war offense. W. Winthrop, MILITARY LAW AND PRECEDENTS,

at 842. Where Winthrop listed the law 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 the 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 belligerency 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 GENERAL

COURT-MARTIAL ORDERS 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 President’s declaration of martial

law. See Reply Br. 18 (citing Hamdan, 548 U.S. at 609 n.37

(plurality op.); W. Winthrop, MILITARY LAW AND PRECEDENTS,

at 839 n.5); S. Starr, COLONEL GRENFELL’S WARS: THE LIFE OF

A SOLDIER OF FORTUNE, 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. EXEC. DOC. NO. 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 Supreme Court has required when using

historical practice to interpret the constitutional separation of

powers. Our dissenting colleague 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.,

INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS 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, MILITARY LAW AND PRECEDENTS, 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. CONST. 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 palpable 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, MILITARY LAW AND

PRECEDENTS, at 831 (stating that Congress’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 and punish * * * Offenses against

the Law of Nations * * *,’ of which the law of war is a part.” Id.

at 7. Winthrop endorsed this distinction 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, MILITARY LAW AND

PRECEDENTS, 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 TRIAL OF THE MAJOR WAR CRIMINALS

BEFORE THE INTERNATIONAL MILITARY TRIBUNAL:

NUREMBERG, 14 NOVEMBER 1945–1 OCTOBER 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 12

August 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, declare 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 principles 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 crimes 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 deference 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 with 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 would 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 regard 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. CONST. 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 offense. 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 international 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 Clause 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 defined 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 therefore 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 against 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 “great 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 the 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 States would “be unable to perform

a duty which they may owe to another 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 legislation 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 conflict or occupation, in the hands
30

of a Party to the conflict or Occupying 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 Constitution: The “Law of Nations,”

U.S. CONST. 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, MILITARY LAW AND

PRECEDENTS, 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. CONST. 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 contrast, 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, MILITARY LAW AND PRECEDENTS, 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, MILITARY LAW AND

PRECEDENTS, 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 conviction 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 dissent characterizes as the “most

important[]” factor, Dis. Op. 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 judicial 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 courts 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 raised 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 Bahlul’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 omitted). 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 prosecution 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 final judgment, and issue binding

orders in [an adjudication of private 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 conclusion. It suggests that military

commissions 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 Power of the United States.” U.S.

CONST. 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 the 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 changes 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 authority because the Constitution

expressly ties that authority to “the Law of Nations,” U.S.

CONST. 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

TATEL, 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 Court 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 the 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 conspiracy, the en banc

Court 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 different result here? The answer is the 

standard of review. The en banc Court 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 Court 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 insists that al Bahlul also failed to raise 

his Article III argument below. But even if that were true, the 

Article III claim is structural, see Reid v. Covert, 354 U.S. 1, 

21 (1957) (“Every extension of military jurisdiction is an 

encroachment on the jurisdiction of civil courts . . . .”), and 

the Supreme Court held in Commodities Futures Trading 

Commission v. Schor that structural claims cannot be waived 

or forfeited, see 478 U.S. 833, 850–51 (1986) (“To 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. Commissioner 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 always 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., dissenting 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.

Under these circumstances, the en banc Court’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 decide 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 that 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). 

The 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 Co., 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 within the militarycommission 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 violations 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 

assumed 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 is 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 court 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, the 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 commission, 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: military-commission 

authority 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 12–14.

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 that issue because it resolved 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, but 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 the 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, 548 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, for

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 the 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, recognized 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 the 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 

military commissions jurisdiction over that crime. In other 

words, Justice Stevens did not conclude that domestic law 

alone could support military-commission jurisdiction over 

conspiracy. This interpretation of Justice Stevens’s opinion 

seems especially obvious given that the three Justices who
7

signed onto his opinion also joined Justice Kennedy’s 

statement that the law of war “is . . . international law,” id. 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 militarycommission 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 “inferior” court is without 

authority to go beyond the Supreme Court’s clear signal, sent 

first in Quirin and repeated in Yamashita, that militarycommission 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 

nothing in Article I of the Constitution that 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 any 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 Congress 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 rejected 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, 

the 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 international 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, Congress 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 government’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 apparatus it has used to try federal 

crimes for more than two centuries: the federal courts. See 18 

U.S.C. § 371 (criminalizing conspiracy). Federal courts hand 

down thousands of conspiracy convictions each year, on 

everything from gun-running to financial fraud to, most 

important here, terrorism. See CENTER ON LAW AND 
9

SECURITY, NEW YORK UNIVERSITY SCHOOL OF LAW,

TERRORIST TRIAL REPORT CARD: SEPTEMBER 11, 2001-

SEPTEMBER 11, 2011 at 2, 7, table 1, available at 

http://goo.gl/Ks3Okc (since September 11, 2001, prosecutors 

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, Zacarias 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 conspiring 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 commissions have convicted only 

eight: al Bahlul, Hamdan, Noor Uthman Muhammed, 

David Hicks, Omar Khadr, Majid Khan, Ibrahim al Qosi, and 

Ahmed al Darbi. See MIAMI HERALD, Guantánamo: By the 

Numbers, http://goo.gl/SEPfV6 (last updated May 12, 2015). 

Furthermore, due to various questions about the militarycommission 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

KAREN LECRAFT HENDERSON, 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 constitutional 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. Id. at 637–38. 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 simple 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 national 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.2d 
2

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, see 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 military 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 Use 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 combatant 

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 September 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. Standard 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 REVIEW

Beyond its troubling ramifications, one of the real 

tragedies of today’s decision is just how unnecessary 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 SW. L.J.

801, 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 contends 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 

component 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 military-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 

proceedings 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 every 
5

substantive challenge to his conviction. See Puckett v. United 

States, 556 U.S. 129, 134 (2009).

In other words, Bahlul violated the contemporaneousobjection rule. That rule requires a party to, in a phrase, 

“speak now or forever hold your peace”: if 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 withholding 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 first 

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 also 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.2d 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, FED. R. CRIM. P. 52(b); 10 U.S.C. 

§ 950a(a)). The appellate court automatically excuses the 

defendant’s forfeiture but reviews his argument under a more 
6

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 

encourage 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” forfeited 

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 plainerror test for forfeited 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 (1944) (“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

 Subject-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 military 

commission’s jurisdiction. The 2006 MCA authorizes trial by 

military commission of “any offense made punishable by this 

chapter,” including “conspiracy.” 10 U.S.C. §§ 948d(a), 

950v(b)(28) (2006). It “explicitly confers jurisdiction on 

military commissions 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 jurisdictional 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. In 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); Glidden, 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 authority 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, which 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)); see also, e.g., United States v. 

Nueci-Peña, 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 Williams, 

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 jurisdictional, a court would be required to raise it 

sua sponte each time it reviews a decision of a non–Article III 
9

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, 64 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 us”); 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 precedents 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 element 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 nonArticle III tribunals for the purpose of emasculating 

constitutional courts, and thereby preventing the 

encroachment or aggrandizement of one branch at 
10

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 constitutional 

difficulty for the same reason that the parties by 

consent cannot confer on federal courts subjectmatter 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.

478 U.S. at 850–51 (emphases added) (quotation marks, 

citations and alterations omitted). But the High Court did not, 

by this language, 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 concession 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 advocacy or otherwise. See United States v. Delgado-Garcia, 374 
11

Put simply, Schor is not a case about forfeitability at all. 

As already discussed, the only nonforfeitable argument is 

subject-matter 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, that 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 parties 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 Philosophy, in A VOCABULARY OF THE PHILOSOPHICAL 

SCIENCES 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) (“That the penalty is to be ‘assessed and 

collected in the same manner as taxes’ refutes the proposition 

that it is a tax . . . .” (emphases 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 accept 

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 original)).
12

about a challenge to the 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 nonforfeitable; instead, the Court 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.” 

Brief 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 held 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 III 
13

limitations are at issue, notions of consent 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 Clause, 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” constitutional 

challenge is forfeitable. Whether an appellate court entertains

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 (5th 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 novo 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 

challenge 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 Kuretski 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, their continued validity has been fatally undermined 

by two very recent Supreme Court decisions.

In B&B Hardware, 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 preclusion applied, the 

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 briefed it. 

See id.; see also id. at 1305 n.2 (“[W]e do not decide 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 Wellness 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 as 
15

plain as day. The main holding of Sharif is that a party’s

consent eliminates the Article 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 Circuit had held that the 

“structural interests” protected by the Judicial Power Clause 

cannot be forfeited. See id. at 7 & n.5 (quoting Sharif, 727 

F.3d at 771). The Supreme Court reversed that decision in 

toto. See id. at 8, 20. In fact, the Court remanded the case to 

the Seventh Circuit with instructions to conduct the 

“factbound analysis” necessary to determine “whether . . . 

Sharif forfeited his Stern argument below.” Id. 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] 

designated for final adjudication in the bankruptcy court . . . 

but prohibited from proceeding in that way as a constitutional 

matter” because “Article 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]espondent 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” govern, id.: they would not have 
16

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 bankruptcy cases, but, in 

my reading, it also undermined the relevant language from 

Kuretski. Contra Maj. Op. 5.

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

Maj. Op. 8, it is my colleagues’ reading that misses the mark. 

They believe Sharif reinforced Schor’s supposed rule of 

nonforfeitability. To 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 granted 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 question 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. See No. 13-935, 

slip op. at 20; Pet’r’s Wellness Int’l, et al. Br. 47–48, 2014 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 rights, not the forfeiture of arguments. 

The question the Court addressed 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, slip op. at 9, 14 

n.10 (quoting Schor, 478 U.S. at 851 (emphasis 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 the 

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, like 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–

51. A party’s consent cannot, by itself, “excuse an actual 

violation of Article 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 consent 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 III 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 raises 
18

constitutional concerns . . . . [C]onsent shows, in part, 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 of 

arguments, standards of review or the like. It pertains only to 

the merits, i.e. the question whether Article III is in fact

violated.6

The Supreme Court eloquently explained the waiver-ofrights/forfeiture-of-arguments distinction in Puckett:

[The defendant’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] forfeited the claim 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 correct 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 waived. 

See, e.g., Sharif, No. 13-935, slip op. at 16–17 n.11 (“[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.” (quoting Plaut, 514 U.S. at 231 (emphasis added) (alteration in 

original))); id. at 12–13 (“[A]llowing bankruptcy litigants to waive the

right to Article III adjudication of Stern claims does 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]he 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 error 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 combatant 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 discretion 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 this 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 special 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 “limitation 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 for 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 injustice. 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 requests—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” exceptions to plain-error review).

Courts apply plain-error review in criminal cases 

notwithstanding “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 position 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 exclusion 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 

HARV. L. REV. 1128, 1135 (1986); see also id. (“A 

requirement that 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 statutory 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 criminal 

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 by 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 error, 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 FED. R. CRIM. 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 plainerror standard. See Olano, 507 U.S. at 731 (noting that Rule 52(b) is 

merely “a restatement of existing law” (quoting FED. R. CRIM. 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 error 
23

 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 provision 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 

demonstrate: (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 inapposite 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. Powell, 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, even 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 colleagues 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 argument. 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 “increasing judicial 

efficiency and checking 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

review 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 judgment 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 necessity.” 

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 the 
25

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 adherence 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 affects 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 military 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 footprint.”); 

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 difficult 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 of 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 explosive 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” if 
26

released “until the last drop of blood.” App. 161–62; see also 

App. 161 (“I will not leave the American government 

anywhere on the face of this earth.”). As I explain later, infra 

pp. 38–42, Bahlul’s conduct was indisputably illegal under 

international law, whether or not he was charged with an 

offense the international community expressly recognizes. 

See Marcus, 560 U.S. at 265 (declining to exempt from plainerror 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 commission. 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 

would “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, 73 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 prevent de novo review of the 
27

constitutionality of the challenged provision. This concern 

may have been the principal motivation behind Schor. The 

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 

adjudication 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 jurisdiction. 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 IND. 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 political 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 “permitting waiver” in some 

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 cursory 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 Article 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 

least, “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 standard. 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 CONSTITUTIONAL CHALLENGES

Bahlul argues that (i) the Congress—in codifying 

conspiracy to commit war crimes as an offense triable by 

military 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 (iii) 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). Their constitutionality 

is therefore “supported by the strongest of presumptions and 

the widest latitude of judicial interpretation, 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 Bahlul 

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. ARTICLE I

Bahlul begins with an uncontroversial premise: “law-ofwar 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, he insists 

that the Congress’s power to codify a law-of-war offense 

derives exclusively from the Define and Punish Clause, U.S.

CONST. art I, § 8, cl. 10. Second, he argues that the Define 

and Punish Clause allows the Congress to codify a law-of-war 

offense 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 offense 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 excess 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 violated “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 authorizing 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. The 

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 incidents 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., concurring/dissenting).
32

1. Define and Punish Clause

The Define and Punish Clause declares that “[t]he 

Congress shall have Power . . . [t]o define and punish Piracies 

and Felonies committed on the high Seas, and Offences 

against the Law of Nations.” U.S. CONST. art. 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, OXFORD ENGLISH 

DICTIONARY (2d ed. 1989). The word “define”—especially 

joined by the conjunction “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 

recited that the Congress could “define & punish 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 Nations”, 21 VAND. J. TRANSNAT’L L. 

865, 876 (1988) (quoting 2 THE RECORDS OF THE FEDERAL 

CONVENTION OF 1787, at 614 (Farrand ed. 1937) (Madison’s 

notes) (emphasis added)). Gouverneur Morris, a 

Pennsylvania delegate to the Constitutional Convention, 

“moved to 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 delegate, 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 community was unworkable because “the 

law of nations [is] often too vague and deficient to be a rule.” 
33

Id. (alterations omitted); see also THE FEDERALIST NO. 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 

Community of Nations: Material Support and Conspiracy 

Charges in Military Commissions, 36 FORDHAM INT’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 THE RECORDS 

OF THE FEDERAL CONVENTION OF 1787, at 316 (Morris) 

(“define . . . was said by others to be applicable to the creating 

of offences”).

The Clause’s history and 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/dissenting). 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 

recognised 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 principles 
34

of law. . . . The law of war is to be found not only in 

treaties, 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 INT’L MILITARY TRIBUNAL (IMT), TRIAL OF THE MAJOR 

WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY 

TRIBUNAL: NUREMBERG 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 

sensitive 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 definition 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 difficulty 
35

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 31–36. 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 on, 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 commission 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”). Nevertheless, 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 control 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 responsibility 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 

affirmatively 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.” Id. 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 respecting, 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 (quoting 47 Stat. 2074, 2092).
37

those under his command 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 which 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 of 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 43 (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 war crime. Id. at 35 (Murphy, 

J., dissenting); see also Eugene Kontorovich, Discretion, 

Delegation, and Defining in the Constitution’s Law of Nations 

Clause, 106 NW. U. L. REV. 1675, 1736 (2012) (charge in 

Yamashita was upheld “with some general and not quite onpoint 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. 27. Rather, in Yamashita, as in Quirin and Hamdan, 

the Court noted that the Congress did not “itself undertake[] to . . . define” 

the law of war. See infra p. 44. It is wrong, however, to suggest that 
38

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 examine 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 thereof. 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 civil-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 that 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 international 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 banc 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 commit 

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 recognizes “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 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 56 (A. 

von Bogdandy & R. Wolfrum eds. 2010).

At one point, my colleagues suggest that the conspiracy 

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. 24. The 

Nuremburg Tribunal, however, did recognize one inchoate 

conspiracy offense: “common plan” to wage aggressive war. 

1 IMT, supra, at 224–26. The Congress is aware of this 

history and could have legitimately concluded that the 

international community would agree that the September 11, 
40

2001 attacks are sufficiently abhorrent to impose inchoateconspiracy 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). 

Furthermore, 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 Associations: Joint Criminal 

Enterprise, Command Responsibility, and the Development of 

International Criminal Law, 93 CAL. L. REV. 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,” TELFORD 

TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A

PERSONAL MEMOIR 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 participated15 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. 31–32. 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 step 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, and 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 recruit 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 Muhammed 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 Jarrah 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 September 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 characterize this 

omission as the creation of a new, purely “domestic” offense, 

as if it were made out of whole cloth. Maj. Op. 15. In my 

view, the Congress has taken a preexisting international lawof-war offense—conspiracy to commit war crimes—and 

eliminated one 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 Yamashita’s war crimes convictions for omissions to 

act; even more cognizable as war crimes, then, are Bahlul’s 

commissions. See supra pp. 40–41 n.15. And today, in our 

post-Erie world, we recognize that there is no “transcendental 

body of law outside of any particular State.” Erie R. Co. v. 

Tompkins, 304 U.S. 64, 79 (1938). Law is created, not 
43

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 shifts 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 HARV. L. REV. 2378, 2390 (2005); see also Stewart Jay, 

The Status of the Law of Nations in Early American Law, 42 

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

consonant 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 

international 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 offense of conspiracy to commit acts 

of terrorism.”).16

 16 Unlike my colleagues, see Maj. Op. 24, 26–27, 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 merely 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 legislative 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 determinate nature”—“[o]ffences 
44

My colleagues’ narrow view of the Congress’s authority 

under the Define and Punish Clause, requiring that a law-ofwar 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 commissions 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 Court 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 

commissions 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, 161. 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 (1796) (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 Kennedy 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 establishing 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 enacting 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, 

my colleagues suggest that the Congress was not exercising 

its power to “define” the law of nations in enacting the 

challenged provision. Maj. Op. 26; 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 in 
46

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 

MCA 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 construction 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’ characterizations of what the Congress did, Bahlul 

himself concedes that the Congress “codified a conspiracy 

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.

REP. NO. 109-664, pt. 1, at 24)); id. at 25 (“Congress enacted 

 17 See, e.g., H.R. REP. NO. 109-664, pt. 1, at 24 (2006) (“The offenses 

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 the 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 United 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 interest 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 Clause.”). Contrary to my 

colleagues’ suggestion, Maj. Op. 26, 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 other 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 here.

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 that 
48

the elevated level of deference 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 Necessary 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 Proper 

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 States 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 constitutionally 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 29. 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 

rational. 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 Justice 
49

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 civilcommitment 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 interests,” 

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 acted 

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 prohibited, 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 constitutes a means 

that is rationally related to the implementation of a 
50

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 involvement.” 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. CONST. art. I, § 10, cl. 

1). In fact, the Define and Punish Clause itself recognizes 

that “[t]he national government is . . . responsible 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 explained, 

“[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. 587, 

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; but 
51

[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 

action.” 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 

authorize 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 Government 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. CONST. art. I, § 8, cl. 14). The Court 

declared that the Make Rules Clause “authorizes Congress to 

subject persons actually in the armed service to trial by courtmartial 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, its 

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 constitutional 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 the 
53

Make Rules Clause. Comstock, 560 U.S. at 134.18 The Army 

would gain nothing in discipline or morale by courtmartialing an individual who was no longer a service member. 

See Toth, 350 U.S. at 22. As just discussed, supra pp. 50–51, 

the Congress’s inclusion of conspiracy to commit war crimes 

as an offense triable by military 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. Conspiracy 

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 extent 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. United States ex rel. 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 civilian spouses of service members, not exservicemen. 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. 

CONST. 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 Marque 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, Colonel Winthrop’s influential 

treatise and our constitutional history all support the 

proposition that the Congress’s authority to specify law-ofwar offenses triable by military commission is also supported 

by its broader war powers.
55

a. Supreme Court Precedent

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. Recognizing 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 earliest 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 “their 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 militarycommission 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 Milligan, 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 held 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 offense 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. The 

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 military 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 debatable, 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 

sufficient 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 proclaimed. 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 Offenses Clause: Congress’ International 

Penal Power, 8 COLUM. J. TRANSNAT’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 

whether 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 violation 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. 12. Justice 

Murphy, in dissent, likewise examined whether “the laws of 
58

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, both 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 cognizable 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 attacks, 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 

combatants 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 draw 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 belies their conclusion that Quirin set the 

“contours” of law-of-war jurisdiction, Maj. Op. 11, that those 

contours are defined exclusively by express international 

agreement, Maj. Op. 15–16, and that “[t]he Supreme Court 

has adhered to Quirin’s understanding of the meaning of the 

‘law of war’ for over seventy years.” Maj. Op. 13.

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 

supports 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 powers, 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 for the Military 

Commission,” Winthrop made plain that, “in general, it is 

those provisions of the Constitution which empower Congress 

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.” 

WILLIAM WINTHROP, MILITARY LAW & PRECEDENTS 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 Commander-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 of 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). Winthrop, it appears, 

had no issue with Congressional “supplementation” of law-ofwar offenses proscribed by international agreement. In his 

treatise, Winthrop listed20 the “offences in violation of the 

 20 WINTHROP, 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 coming 
61

laws and usages of war” and described them as “those 

principally, in the experience of our wars,” that have been 

“cognizable by military tribunals.” WINTHROP, 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 exclusive 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 other 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 given 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 proclamation of freedom 

to the 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”); WILLIAM WINTHROP, A DIGEST OF OPINIONS OF THE 

JUDGE ADVOCATE GENERAL OF THE ARMY 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. 18. 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 that, 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 WILLIAM H. REHNQUIST, ALL THE LAWS BUT 

ONE: CIVIL LIBERTIES IN WARTIME 144 (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. 18. According to the charging document, however, 

the Lincoln conspirators were charged with “combining, 

confederating, and conspiring together . . . to kill and murder 

. . . Abraham Lincoln.” J. HOLT & T. EWING, CHARGE AND 

SPECIFICATION AGAINST DAVID E. HEROLD, ET AL. (1865)

(emphasis added); see also REHNQUIST, 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 defendants could only have been 

charged with conspiracy. Because John Wilkes Booth was 
63

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 REHNQUIST, 

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 

and 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, 719 (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 MODEL PENAL CODE

§ 5.03(6).

My colleagues respond by describing 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 (“Martial law had 

been declared in the District of Columbia, but the civil courts 
64

were open and held their regular sessions, and transacted 

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 

(“the 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 

addressed the jurisdiction of a law-of-war military 

 21 My colleagues object to my reliance 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 tribunals 

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 the 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 trial 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” participated 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 HARV. NAT’L SEC. 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 241. 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 the 
66

Judge Advocate General 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. 20. 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. 16–21. But we 

are “called upon to judge the constitutionality of an Act of 

Congress—‘the gravest and most delicate duty that this Court 

is called upon to perform,’ ” Rostker, 453 U.S. at 64 (quoting 

 22 See United States Army 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 Army Forces, 

China, Regulations Governing the Trial of War Criminals (Jan. 21, 1946) 

(same for China theater of operations).

23 See U.N. COMMAND, RULES OF CRIMINAL PROCEDURE FOR MILITARY 

COMMISSIONS OF THE UNITED NATIONS COMMAND 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. military 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 by military commission. Concur. Op. 8; see also 

Maj. Op. 26–27. 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 WINTHROP, 

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 11–13. 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 the 
68

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 instance whether and how the United States will meet 

its international obligations”).

B. ARTICLE 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. CONST. 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 provides:

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. CONST. art. III, § 1. The Clause mirrors similar grants of 

power to the Congress 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, and 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). See also Mistretta v. United 

States, 488 U.S. 361, 381 (1989) (“While the Constitution 

diffuses power the better to 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 joints 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. CONST. art. III, § 1. The “judicial Power,” 

as relevant here, extends to “Cases . . . arising 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 Article III] question can no longer be 

answered by looking only to the constitutional text.”). The 

Supreme Court has recognized several historical—albeit 
70

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. Id. 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 the 

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 than 

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 Clause. 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 without 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 reason 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 historical

safe harbor for military-commission jurisdiction and therefore 

violates Article III. See Maj. Op. 30–32; 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 Power Clause simply 

because it falls outside a historical 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 inform 

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 pursuant 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, 130 
72

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 structural constitutional 

analysis should be any different in the criminal context.” 

(citing Mistretta, 488 U.S. at 382–83)). And they do not 

enjoy any special significance under Article III. As the 

Supreme Court has explained:

It was neither the legislative nor 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 (“neither 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 analysis. There, the Supreme Court held that the 

Congress could not constitutionally authorize the bankruptcy 

courts to hear a debtor’s compulsory state-law counterclaim. 

See 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 bankruptcy 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 (Breyer, 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.

My 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. 11–15; 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 HARV. J.L. &

PUB. POL’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 is 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 military 
74

trial for conspiracy implicates “private,” as opposed to public, 

rights. See HART & WECHSLER’S THE FEDERAL COURTS &

THE FEDERAL SYSTEM 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 Sharif, No. 13-935, slip op. at 11 n.9 

(non–Article III tribunal’s power to enter final judgment is 

relevant but not decisive).

It is unclear whether Bahlul “consented” to trial by 

military commission. Although he resisted being tried at all, 

he never raised 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 nonArticle 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 defendant 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 objection 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 commission. First, and most importantly, the 
75

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, id. § 950g(e). This 

safeguard “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 availability 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 also 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. 33–34, 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 2009 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” satisfies Article III); Schor, 478 U.S. at 

853 (review for “weight of the evidence” satisfies 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 evidence” 

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 (quotation 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—consistent with 

Article III—adjudicate expressly recognized international 

law-of-war offenses. An inchoate offense like conspiracy

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 Judicial 
77

Branch can only be termed de minimis.” Schor, 478 U.S. at 

856.

Third, “the concerns that drove Congress 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 discussed 

concerns were the potential disclosure of highly classified 

information25; the efficiency of military-commission 

proceedings26; the military’s expertise in matters of national 

security27; the inability to prosecute enemy combatants due to 

speedy-trial violations28; the inadmissibility of certain forms 

of evidence29; 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 Cong. 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.

(statement 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 CASE W. RES. J. INT’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 realworld 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 

purpose 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 review 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 raises 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 bankruptcy 

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 arbitration); 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 

relevant analog. Military commissions are a recognized 

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); Stern, 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 historical exceptions to Article III are exceptions 
80

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. The availability of de novo 

appellate review under the 2009 MCA keeps the challenged 

provision in the constitutional fold, even if, arguendo, 

inchoate conspiracy 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 comfortably within the Congress’s 

Article I authority and, concomitantly, under the militarycommission 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 

directed.” U.S. CONST. 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 light 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 criminal 
81

trials in the 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 procedures.” Id. (citations 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. CONT’L CONG. 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 applicable 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 (“[section] 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 the 
82

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. Specifically, he believes—

and my colleagues at one point appear to agree, see Maj. Op. 

14—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 individual 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 

competent 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 

are 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 rights” (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 

argued 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 answer 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 Congress’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 militarycommission 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. 590, 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 the 

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 Bahlul 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. citizenship 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 Court 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 expansion 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 as overruling 

sub silentio Supreme Court precedent on the nonavailability 

of jury rights to noncitizens abroad. See Rodriguez de Quijas 
85

v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If a 

precedent of this Court has direct application in a case, yet 

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 

overruling its own decisions.”).

Bahlul has no constitutional right to a jury and neither the 

Criminal Jury Clause nor the Judicial Power Clause of Article 

III can invalidate his conspiracy conviction.

C. EQUAL PROTECTION & FIRST AMENDMENT

Bahlul’s two remaining challenges are frivolous. He 

contends that the 2006 MCA violates the 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.