No. ________

In The

Supreme Court of the United States
♦

ALI HAMZA AHMAD SULIMAN AL BAHLUL,
Petitioner,

v.
UNITED STATES,
Respondent.
♦

On Application For A Petition
For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
♦

PETITION FOR A WRIT OF CERTIORARI
♦

MAJ Todd Pierce, JA,
USA (Ret.)
Senior Fellow
Univ. Of Minnesota
Human Rights Center
Mondale Hall, N-120
229-19th Avenue South
Minneapolis, MN 55455

Michel Paradis
Counsel of Record
Mary R. McCormick
U.S. Department of Defense
Military Commission
Defense Organization
1620 Defense Pentagon
Washington, DC 20301
1.703.695.4672
michel.paradis@osd.mil

Counsel for Petitioner

March 28, 2017

 i
QUESTIONS PRESENTED
Petitioner has been held at the United States Naval
Station in Guantanamo Bay, Cuba, since January 2002.
In November 2008, a military commission convicted
him, inter alia, of the inchoate crime of conspiracy
pursuant to the Military Commissions Act of 2006, 120
Stat. 2600. Respondent concedes that the stand-alone
crime of conspiracy at issue here is not and was not
recognized as a war crime under international law.
Petitioner’s conspiracy conviction raises three questions
of exceptional importance:
1.  Whether military commissions’ assumption of the
federal courts’ subject-matter jurisdiction over wholly
domestic crimes, such as conspiracy, violates Article III’s
reservation of the “trial of all crimes” to the judiciary?
2. Whether the Military Commissions Act’s
codification of crimes not otherwise recognized as war
crimes under international law was intended to apply
retroactively and, if so, does that violate the Ex Post
Facto Clause?
3. Whether the Military Commissions Act’s
establishment of a segregated criminal justice system
in which only non-citizens are subject to military
commission jurisdiction violates the constitutional
guarantee of equal justice under law?

 ii
LIST OF PARTIES
All parties appear in the caption of the case on the
cover page.

CORPORATE DISCLOSURE STATEMENT
No corporations are parties, and there are no parent
companies or publicly held companies owning any
corporation’s stock.

 iii
TABLE OF CONTENTS
PETITION FOR WRIT OF CERTIORARI.......................... 1
OPINIONS BELOW............................................................... 1
JURISDICTION..................................................................... 1
PRELIMINARY STATEMENT.............................................. 2
STATEMENT OF THE CASE.............................................. 6
REASONS FOR GRANTING THE PETITION................. 14
I.  THIS COURT NEEDS TO SETTLE
WHETHER CONGRESS MAY EXEMPT
WHOLLY DOMESTIC CRIMES, SUCH
AS CONSPIRACY, FROM ARTICLE III.............. 14
II. THIS COURT MUST DETERMINE
WHETHER
CONGRESS
MAY
CODIFY CRIMES AND MAKE THEM
RETROACTIVELY APPLICABLE BY
LEGISLATIVELY DETERMINING THAT
ITS OWN STATUTE IS DECLARATIVE
OF EXISTING LAW............................................... 20
III. 
THE SEGREGATION OF THE
CRIMINAL
JUSTICE
SYSTEM
PRESENTS
A
QUESTION
OF
EXCEPTIONAL IMPORTANCE THAT
THIS COURT MUST ADDRESS......................... 24

 iv
IV. THE CIRCUIT’S INVOCATION OF
THE PLAIN ERROR RULE TO AVOID
DECIDING THE EX POST FACTO AND
EQUAL PROTECTION GROUNDS WAS
ERRONEOUS AND HAS RESULTED IN
NOTHING BUT LEGAL UNCERTAINTY............ 29
CONCLUSION..................................................................... 33

 v
TABLE OF AUTHORITIES
CASES
Al-Aulaqi v. Panetta, 35 F.Supp.3d 56 (D.D.C. 2014).... 24
Alice Corp. Pty. v. CLS Bank Int’l, 134 S.Ct.
2347 (2014).................................................................... 16
Callan v. Wilson, 127 U.S. 540 (1888)....................... 14, 18
Chambers v. Florida, 309 U.S. 227 (1940)...................... 26
Estelle v. Gamble, 429 U.S. 97 (1976).............................. 30
Ex parte Endo, 323 U.S. 283 (1944)................................. 15
Ex parte Quirin, 317 U.S. 1 (1942)...........3, 17, 18, 21, 26
Ex parte Siebold, 100 U.S. 371 (1880)............................. 31
Ford v. Georgia, 498 U.S. 411 (1991)............................... 30
Gherebi v. Bush, 374 F.3d 727 (9th Cir. 2004)................ 15
Griffin v. Illinois, 351 U.S. 12 (1956)............................. 26
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).....2, 14, 20, 21
Hamdan v. United States, 696 F.3d 1238
(D.C. Cir. 2012).....................................10, 11, 21, 22, 24
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).................. 24, 27
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)........... 27
Hernandez v. United States, 785 F.3d 117
(5th Cir. 2015)............................................................... 26
In re Yamashita, 327 U.S. 1 (1946).................................. 17
Johnson v. United States, 520 U.S. 461 (1997).............. 30
Lynce v. Mathis, 519 U.S. 433 (1997).............................. 23
Martin v. Hadix, 527 U.S. 343 (1999)............................. 22
McLaughlin v. Florida, 379 U.S. 184 (1964).................. 28
Morrison v. Olson, 487 U.S. 654 (1988).......................... 16

 vi
Plyler v. Doe, 457 U.S. 202 (1982).................................... 27
Postmaster-General v. Early, 12 Wheat. 136 (1827)..... 23
State v. Kentuck, 8 La.Ann. 308 (1853)............................ 25
Stern v. Marshall, 564 U.S. 462 (2011)...................... 16, 19
United States v. Hamdan, 801 F.Supp.2d 1247
(U.S.C.M.C.R. 2010)........................................................ 9
United States v. Awan, 607 F.3d 306 (2d Cir. 2010)...... 28
United States v. Garcia, 5 C.M.A. 88 (C.M.A. 1954)..... 31
United States v. Haddock, 956 F.2d 1534
(10th Cir. 1992)............................................................. 32
United States v. Jayyousi, 657 F.3d 1085
(11th Cir. 2011)............................................................. 25
United States v. Melanson, 53 M.J. 1 (C.A.A.F. 2000)... 31
United States v. Rubio, 677 F.3d 1257 (D.C. Cir. 2012)... 28
United States v. Terrell, 696 F.3d 1257
(D.C. Cir. 2012)............................................................. 29
Welch v. United States, 136 S.Ct. 1257 (2016)................ 31
Wong Wing v. United States, 163 U.S. 228 (1896)..... 4, 25
Yick Wo v. Hopkins, 118 U.S. 356 (1886)........................ 25
Zivotofsky v. Kerry, 135 S.Ct. 2076 (2015)..................... 19
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V.......................................................... 27
U.S. Const. art. I § 8, cl. 10...................................... 3, 12, 18
U.S. Const. art. I § 9, cl. 3..................4, 9, 11, 20, 22, 23, 32
U.S. Const. art. III...... 3, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19

 vii
U.S. CODE
10 U.S.C. 821........................................................6, 10, 11, 21
10 U.S.C. 904........................................................................ 21
10 U.S.C. 906........................................................................ 21
10 U.S.C. 948c...................................................................... 24
10 U.S.C. 950g.................................................................. 1, 15
10 U.S.C. 950p (2006)......................................................... 23
10 U.S.C. 950t (2006)............................................................ 7
10 U.S.C. 950u (2006)........................................................... 7
10 U.S.C. 950v (2006)........................................................... 7
10 U.S.C. 950w (2006).......................................................... 7
18 U.S.C. 2332...................................................................... 11
18 U.S.C. 2339A..................................................................... 7
18 U.S.C. 2339B..................................................................... 7
28 U.S.C. 1254........................................................................ 1
28 U.S.C. 1442a.................................................................... 24
28 U.S.C. 2255...................................................................... 31
50 U.S.C. 2204...................................................................... 24
CONGRESSIONAL MATERIALS
152 Cong. Rec. H7940 (Sept. 27, 2006)............................ 28
27 Stat. 25............................................................................ 24
Military Commissions Act of 2006, 120 Stat. 2600........... 6

 viii
EXECUTIVE MATERIALS
Military Commissions, 11 U.S. Op. Atty. Gen.
297 (1865)...................................................................... 17
United States v. Darbi, AE039 (Aug. 8, 2008)................ 30
United States v. Darbi, AE040 (Aug. 8, 2008)................ 30
United States v. Hamdan, AE211 (Jun. 1, 2008)........... 30
United States v. Hamdan, AE288 (Jul. 15, 2008).......... 30
United States v. Khadr, AE077 (Mar. 15, 2008)............. 30
United States v. Khadr, AE089 (Apr. 21, 2008).............. 30
United States v. Mohammed, AE485C (Jan. 19, 2017)... 3
United States v. Nashiri, AE048U (Feb. 2, 2017)......... 16
MISCELLANEOUS
12 L. Rpts. of Trials of War Criminals (1949).................. 26
15 L. Rep. Trials of War Criminals (1950)....................... 18
Center on National Security, Statistical
Analysis (Feb 24, 2017)............................................... 20
Fed.R.Crim.Pro. 52............................................................. 30
I.C.R.C., Commentary: III Geneva Convention
Relative to the Treatment of Prisoners of
War (1960)..................................................................... 26
Kent’s Comm. on Am. L. (10th ed. 1860)....................... 23
Martin Lederman, The Law(?) of the Lincoln
Assassination, 118 Columbia L. Rev. ___ (2018)...... 19
Matthew Hay Brown, From Owings Mills
High School to a cell at Guantanamo,
The Baltimore Sun (Mar. 3, 2012)................................ 28
Pet for Cert. in Nashiri v. Trump (No. 16-___)......... 3, 14

 ix
Thomas D. Morris, Southern Slavery and the
Law, 1619-1860 (1996).................................................. 25
Tom Hays, As Trump touts Guantanamo,
civilian prosecutors notch wins,
Associated Press (Mar. 17, 2017)................................. 20
United States v. Sawada, et al., JAGO File No.
119-19-5 (1946).............................................................. 26

 x
CONSTITUTIONAL, STATUTORY & REGULATORY
PROVISIONS INVOLVED
Article I § 8, cl. 10 of the United States Constitution
states:
[The Congress shall have the power to] define and
punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
Article I § 9, cl. 3 of the United States Constitution states:
No Bill of Attainder or ex post facto Law shall be
passed.
Article III § 1 of the United States Constitution states:
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. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for
their Services, a Compensation, which shall not be
diminished during their Continuance in Office.
Article III § 2, cl. 1 of the United States Constitution
states:
The judicial Power shall extend to 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;—to all Cases
affecting Ambassadors, other public Ministers and
Consuls;—to all Cases of admiralty and maritime
Jurisdiction;—to Controversies to which the United
States shall be a Party;—to Controversies between
two or more States;—between a State and Citizens of
another State; —between Citizens of different States,
—between Citizens of the same State claiming Lands
under Grants of different States, and between a State,

 xi
or the Citizens thereof, and foreign States, Citizens or
Subjects.
Article III § 2, cl. 3 of the United States Constitution
states:
The trial of all crimes, except in cases of impeachment,
shall be by jury; and such trial shall be held in the state
where the said crimes shall have been committed; but
when not committed within any state, the trial shall
be at such place or places as the Congress may by law
have directed
The Fifth Amendment of the United States Constitution
states:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.
The Military Commissions Act of 2006, 120 Stat. 2600,
states in pertinent part:
10 U.S.C. 948c (2006) – Persons subject to military
commissions Any alien unlawful enemy combatant
is subject to trial by military commission under this
chapter.
10 U.S.C. 948d(a) (2006) – A military commission
under this chapter shall have jurisdiction to try any
offense made punishable by this chapter or the law

 xii
of war when committed by an alien unlawful enemy
combatant before, on, or after September 11, 2001.
10 U.S.C. 950p (2006) – Statement of substantive
offenses.
(a)  Purpose. – The provisions of this subchapter
codify offenses that have traditionally
been triable by military commissions. This
chapter does not establish new crimes that
did not exist before its enactment, but
rather codifies those crimes for trial by
military commission.
(b)  Effect. – Because the provisions of this
subchapter (including provisions that
incorporate definitions in other provisions
of law) are declarative of existing law,
they do not preclude trial for crimes that
occurred before the date of the enactment
of this chapter.
10 U.S.C. 950v(28) (2006) – Any person subject to
this chapter who conspires to commit one or more
substantive offenses triable by military commission
under this chapter, and who knowingly does any
overt act to effect the object of the conspiracy, shall
be punished, if death results to one or more of the
victims, by death or such other punishment as a
military commission under this chapter may direct,
and, if death does not result to any of the victims,
by such punishment, other than death, as a military
commission under this chapter may direct.
The Military Commissions Act of 2009, 123 Stat. 2190,
states in pertinent part:
10 U.S.C. 950f(d) – In a case reviewed by the Court
under this section, the Court may act only with
respect to the findings and sentence as approved by

 xiii
the convening authority. The Court may affirm only
such findings of guilty, and the sentence or such part
or amount of the sentence, as the Court finds correct
in law and fact and determines, on the basis of the
entire record, should be approved. In considering the
record, the Court may weigh the evidence, judge the
credibility of witnesses, and determine controverted
questions of fact, recognizing that the military
commission saw and heard the witnesses.
10 U.S.C. 950g(a) – Except as provided in subsection
(b), the United States Court of Appeals for the District
of Columbia Circuit shall have exclusive jurisdiction to
determine the validity of a final judgment rendered by
a military commission (as approved by the convening
authority and, where applicable, as affirmed or set
aside as incorrect in law by the United States Court
of Military Commission Review) under this chapter.
10 U.S.C. 950g(d) – Scope and Nature of Review. —
The United States Court of Appeals for the District
of Columbia Circuit may act under this section only
with respect to the findings and sentence as approved
by the convening authority and as affirmed or set
aside as incorrect in law by the United States Court
of Military Commission Review, and shall take action
only with respect to matters of law, including the
sufficiency of the evidence to support the verdict.
The Department of Defense, Manual for Military
Commissions, Rules for Military Commissions (2007)
states in relevant part:
Rule 905(e) – Effect of failure to raise defenses or
objections. Failure by a party to raise defenses or
objections or to make motions or requests which
must be made before pleas are entered under section
(b) of this rule shall constitute waiver. The military
judge for good cause shown may grant relief from

 xiv
the waiver. Other motions, requests, defenses, or
objections, except lack of jurisdiction or failure of a
charge to allege an offense, must be raised before the
commission is adjourned for that case and, unless
otherwise provided in this Manual, failure to do so
shall constitute waiver.
Rule 907(b)(1) – Nonwaivable grounds. A charge or
specification shall be dismissed at any stage of the
proceedings if: (A) The military commission lacks
jurisdiction to try the accused for the offense; or (B)
The specification fails to state an offense.

 1
PETITION FOR WRIT OF CERTIORARI
Petitioner, Ali Hamza Ahmad Suliman al Bahlul,
respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
District of Columbia Circuit in this case.
OPINIONS BELOW
The decisions of the United States Court of Appeals
for the District of Columbia Circuit (App. 1-454) are
published at 840 F.3d 757, 792 F.3d 1, 767 F.3d 1, and 2013
WL 297726. The decision of the United States Court of
Military Commission Review (App. 455-680) is published
at 820 F.Supp.2d 1141.
JURISDICTION
The United States Court of Appeals for the District
of Columbia Circuit issued its opinion and judgment
in this case on October 20, 2016, and denied a timely
petition for rehearing on November 28, 2016. App 681. On
February 3, 2017, the Chief Justice granted petitioner’s
motion to extend the time to file until March 28, 2017.
The jurisdiction of this Court is invoked under 10 U.S.C.
950g(e) and 28 U.S.C. 1254(1).

 2
PRELIMINARY STATEMENT
Respondent first charged petitioner before a military
commission with the inchoate crime of conspiracy in
2004. It convicted him of that crime in 2008. Today, the
threshold question of whether that military commission
could lawfully exercise jurisdiction over that charge
remains as unresolved as it was thirteen years ago. In
just this post-trial appeal, there have been six rounds
of merits briefing, five oral arguments, three rehearings
en banc, and fourteen published opinions. Yet, this
case comes to this Court with no controlling decision
from the D.C. Circuit on a question of exceptional
importance: Is it constitutional to try wholly domestic
federal crimes, such as conspiracy, in these special nonjudicial trial chambers?
“Trial by military commission raises separationof-powers concerns of the highest order.” Hamdan
v. Rumsfeld, 548 U.S. 557, 638 (2006) (Kennedy, J.,
concurring). The modern military commission system
created by the Military Commissions Act raises those
concerns to a level never confronted before. Traditionally,
military commissions were convened on the battlefield by
a military commander to try universally recognized war
crimes during or soon after the cessation of hostilities.
While they frequently invited criticism for procedural
irregularities, they were part-and-parcel of military
operations, conducted in wars of definite geographic
scope, and temporary. Not so here.
The modern military commission system was
designed to be a permanent alternative to the federal
court system. They are administered by a large civilian
bureaucracy within the Department of Defense and
statutorily adjoined, like the bankruptcy and tax courts,
to the statutory jurisdiction of the D.C. Circuit. They are
conducted in Guantanamo, which was recently described

 3
by the military judge presiding over the September 11th
case as “an active and relatively modern U.S. Navy base
in existence since 1903. The Commission is not convened
in Iraq, Afghanistan, or the Horn of Africa where the
U.S. presence is truly expeditionary.” United States v.
Mohammed, AE485C (Jan. 19, 2017). Their procedural
flaws, such as the lack of judicial independence,
curtailed counsel rights, and the admission of hearsay
and evidence derived from torture, are not ad hoc
adaptations to battlefield conditions. They are codified
features. And, as noted in the petition filed in Nashiri v.
Trump (No. 16-___), these tribunals openly compete for
the district courts’ jurisdiction over the most routinely
charged federal crimes in some of the most high-profile
trials in U.S. history. Never have military commissions
posed such a clear danger to the structural integrity of
the judicial branch.
Even in the first few months after Pearl Harbor, when
the dangers to national security could not have been
greater, this Court only permitted the use of military
commissions subject to two conditions. First, this Court
limited the offenses triable to those that Congress could
codify pursuant to its Article I § 8, cl. 10 power to “Define
and Punish … offenses against the law of nations.” Ex
parte Quirin, 317 U.S. 1, 28-29 (1942) . Second, even
where offenses might be sustainable under the Define &
Punish Clause, this Court held that they were not eligible
for non-judicial trial if “they are of that class of offenses
constitutionally triable only by a jury.” Id. at 29, 39-40.
Hence, this Court ruled that “offenses against the law of
war” were, like petty offenses, not “‘crimes’ and ‘criminal
prosecutions’” within the meaning of Article III because
they were “not triable by jury at common law.” Id. at 40.
Here, the parties agree that petitioner’s stand-alone
conspiracy conviction is not an offense under the law of
nations. And conspiracy has long been recognized to be

 4
an infamous crime, triable only by jury at common law.
This case asks, therefore, whether the very high ceiling
set by Quirin – requiring military commissions to try
only law of war offenses that are not crimes triable by
jury at common law – remains good law.
Relatedly, the retroactive prosecution of crimes first
criminalized in the Military Commissions Act, such
as conspiracy, has left every military commission in
Guantanamo under a constitutional cloud. This statute
was enacted nearly five years after petitioner was
taken into custody and three years after he was first
charged. The Circuit divided by a vote of 4-3 on whether
ambiguities in petitioner’s trial-level objections should
be construed to constitute a forfeiture of his claim that
this violated the Ex Post Facto Clause. The result was a
ruling that avoided the merits via the plain error rule. As
Judges Rogers, Brown, and Kavanaugh noted in dissent,
this reach for the plain error rule was both erroneous
and improper. Without this Court’s review, prosecutors
and defendants alike will lack needed legal clarity for a
decade to come.
Finally, the Military Commissions Act violates the
Constitution’s most basic guarantees of equal justice
under law. Congress has created a non-judicial criminal
justice system with general subject-matter jurisdiction
but with personal jurisdiction limited to non-citizens. The
majority below ruled that segregating non-citizens in this
way was constitutionally defensible because the federal
government is permitted to discriminate against noncitizens on matters of national security. But this blanket
deference is inconsistent with this Court’s precedents
which have held that discrimination against non-citizens
must at least be rationally related to a law’s objectives.
It may not be invidious, particularly where it impacts the
criminal justice system. Thus in Wong Wing v. United
States, 163 U.S. 228 (1896), this Court invalidated a

 5
similarly discriminatory law, which segregated noncitizens into a non-judicial trial process for immigration
law violations. The majority below neither cited nor
distinguished Wong Wing. And it ignored the Act’s
legislative history, which shows that lawmakers enacted
this limit merely to avoid the political accountability that
would result if citizens were subject to these tribunals’
truncated procedures.
Like the other two questions presented, the equal
protection issue looms over every military commission
case and continues to remain unresolved after more than
a decade of litigation. The costs of this legal uncertainty
are not limited to those on trial in Guantanamo. The
threat of being segregated into a special trial chamber for
crimes as broadly sweeping as conspiracy and material
support for terrorism looms over at least twenty-three
million non-citizens in this country. And it undermines
the American justice system’s credibility as a role model
to the world for equal justice under law.

 6
STATEMENT OF THE CASE
Initial Custody. Petitioner is a Yemeni national.
In 1999, he traveled to Afghanistan and became a
follower of Usama bin Laden. He returned to Yemen in
December 1999, but then left again for Afghanistan in the
spring of 2000 to join al Qaeda. He was seized by local
authorities in Pakistan in December 2001 and transferred
to Guantanamo in January 2002.
Trial Proceedings. In 2004, the Department of
Defense charged petitioner with conspiracy and slated
him for trial before a military commission pursuant to 10
U.S.C. 821. The overt acts alleged that petitioner provided
secretarial services to bin Laden and was the principal
editor of a 90-minute propaganda film celebrating al
Qaeda’s ideology. Petitioner has never been alleged to
have directly participated in or had any foreknowledge
of any terrorist attack.
During pre-trial proceedings, petitioner raised
various objections, principally to the requirement that he
have a military lawyer represent him. Petitioner sought
representation by a Yemeni lawyer or, in the alternative,
to represent himself. He wrote nine of his objections
down in an Arabic document he called the “nine points
of boycott” or “Nine Points.” For reasons that remain
unclear, the government retained custody of petitioner’s
legal papers and lost the only known copy of the Nine
Points. In its place, a portion of transcript from a hearing
in January 2006, during which petitioner first discussed
the Nine Points, is included as Appellate Exhibit 30.
The translation quality, however, is very poor and the
transcript inexplicably omits the discussion of Objection
#4 altogether.
In February 2008, the Department of Defense issued
new charges against petitioner under the Military
Commissions Act of 2006, 120 Stat. 2600. The Act

 7
contained thirty-one enumerated offenses made triable
by military commission. 10 U.S.C. 950t-950w (2006).
Petitioner was charged with three of the statute’s
inchoate crimes. The first charge, conspiracy (10 U.S.C.
950v(b)(28) (2006)), was substantively identical to the
prior charge. Two other charges of solicitation (10
U.S.C. 950u (2006)) and providing material support for
terrorism (10 U.S.C. 950v(b)(25) (2006)) were also levied
based on the same overt acts.
Petitioner was not charged with any substantive crime,
nor with complicity in any completed crime. With respect
to the charge of material support for terrorism, petitioner
was only charged with the 18 U.S.C. 2339B variant of the
offense, which proscribes providing support to a terrorist
organization. He was not charged with the section
2339A variant of the offense, which proscribes providing
material support “to be used in preparation for, or in
carrying out, an act of terrorism.” 10 U.S.C. 950v(b)(25)
(2006). And with respect to the conspiracy charge,
the prosecution expressly disclaimed any allegation
that petitioner was guilty of a substantive crime via
a conspiracy-type theory of liability. Specifically, the
2008 conspiracy charge originally alleged that petitioner
“join[ed] al Qaeda, an enterprise of persons who shared
a common criminal purpose, that involved, at least in
part, the commission or intended commission of [a
war crime].” App. 110. Prior to petitioner’s entry of his
pleas, the prosecution sua sponte moved to strike this
language in order to “reduce[] the offense.” Trans. 113.
Accordingly, the military judge charged the members
(i.e. the military “jury”) only on the stand-alone, inchoate
crime of conspiracy, stating that “the overt act required
for this offense does not have to be a criminal act,” and
“proof that [any object offenses] actually occurred is not
required.” Trans. 848.

 8
Other than to renew his request to represent himself,
petitioner made no formal motions. He did, however,
orally announce his “boycott” of the proceedings, object
to the loss of his Nine Points, reject his military lawyer, and
question the presiding military judge on the retroactive
application of the Military Commissions Act. Trans.
104. The military judge construed petitioner’s self-styled
“boycott” as a challenge to the military commission’s
legality. “If someone makes such a motion and loses it,”
the military judge advised him, “their continued presence
at the trial does not waive the motion for appeal. … Some
of those reasons can be that the court was not lawfully
created. Other reasons can be that the charge itself does
not state a crime.” Trans. 98-99. Petitioner then admitted
most of the factual allegations against him and pleaded
“not guilty, and what I did was not a crime.” Trans. 175.
Trial commenced on October 27, 2008. The government
called fourteen witnesses. The Bureau of Prisons brought
three federal prisoners to testify about seeing petitioner’s
film at terrorist training camps. Law enforcement officers
testified on the film’s production and the chain of custody
linking it to petitioner. Three interrogators testified
largely about petitioner taking credit for the film’s
production. As its last witness, the government called a
“propaganda expert [to] breakdown this video and place
it in the context of other propaganda[.]” Trans. 318. On
November 3, 2008, the commission found petitioner
guilty on all charges and sentenced him to life.
Appeal to the Court of Military Commission
Review. In June 2009, the Convening Authority approved
the judgment without exception. The case was fully
briefed and argued before the United States Court of
Military Commission Review (USCMCR) in January 2010.
In addition to its arguments on the merits, respondent
argued that all of petitioner’s legal claims, except for his
claim that Article I and Article III precluded the trial of

 9
non-war crimes before a military commission, should
be deemed waived because a military lawyer appointed
to represent him in his absence agreed to “waive all
motions” during a pre-trial hearing in August 2008.
In September 2010, the USCMCR sua sponte ordered
rehearing en banc and specified two additional issues: 1)
whether the international law theory of liability known
as “joint criminal enterprise” supported the conclusion
that “Charges I through III constitute offenses triable by
military commission and whether those charges violate
the Ex Post Facto Clause of the Constitution;” and 2)
whether “the offense of aiding the enemy limited to those
who have betrayed an allegiance or duty to a sovereign
nation[.]” App. 467.
In September 2011, the USCMCR affirmed the
judgement without exception. It reasoned that
“[w]here Congress’ determination that certain
acts constitute offenses under the law of nations
is consistent with international norms, we also
conclude that the specific statutory scheme
employed by Congress to include the name of the
offense, the elements of that offense, the forum by
which that offense is punishable, and the applicable
rules/procedures, is due great deference.”
App. 495. Finding “international norms” condemning
terrorism, the USCMCR held all three crimes charged
constitutionally triable by military commission. App. 587.
The USCMCR then rejected petitioner’s equal
protection challenge due to its decision in United States
v. Hamdan, 801 F.Supp.2d 1247, 1313–23 (U.S.C.M.C.R.
2010), where it had held that “Congress and the President
have rightly determined that the treatment of foreign
detainees captured on the battlefield in a foreign land
has foreign policy implications[.]”

 10
Finally, the USCMCR rejected respondent’s waiver
argument as moot. The USCMCR noted, however, that
the “record also reveals ambiguity surrounding detailed
defense counsel’s authority to act in appellant’s stead
when he ‘waived all motions,’ and the absence of explicit,
on the record discussion of the effect of, or appellant’s
understanding of his voluntary absence on motions,
defenses or objections.” App. 668.
D.C. Circuit’s First Panel Decision. Petitioner
timely appealed to the D.C. Circuit. In its briefing,
respondent abandoned the USCMCR’s decision and
conceded that none of the charges it brought against
petitioner were cognizable under international law. It
contended, however, that they could nevertheless be
prosecuted in a military commission under the “U.S.
Common Law of War.”
While petitioner’s case was pending, Judge
Kavanaugh, joined by Judges Sentelle and Ginsburg,
ruled in a related case that the Military Commissions
Act should not be construed to authorize the retroactive
prosecution of offenses not otherwise triable by military
commission under pre-existing law. Hamdan v. United
States, 696 F.3d 1238 (D.C. Cir. 2012) (Hamdan II). The
panel rejected respondent’s “U.S. Common Law of War”
argument, holding that under pre-2006 law (10 U.S.C.
821), military commissions’ jurisdiction reached only
violations of the international law of war. Id. at 1252.
In January 2013, respondent conceded that petitioner’s
conviction could not survive Hamdan II and notified the
Circuit of its intention to seek certiorari in petitioner’s
case to have Hamdan II overturned. The Circuit duly
vacated petitioner’s conviction on all charges. App. 454.
D.C. Circuit’s First En banc Decision. Instead of
seeking certiorari, respondent sought rehearing en banc.
The Circuit granted rehearing and specified two additional

 11
questions: 1) whether “the Ex Post Facto Clause appl[ies]
in cases involving detainees at Guantanamo;” and 2)
“was conspiracy a violation of the international law of
war at the time of [petitioner’s] offense.”
By a vote of 4-3, the Circuit held that petitioner had
forfeited his ex post facto challenge by failing to raise it
with sufficient specificity at trial, making it reviewable
only for plain error. App. 314. Judges Rogers, Brown,
and Kavanaugh dissented, arguing that petitioner had
adequately raised the claim, that the plain error rule was
not part of the law governing military commissions, and
that the ex post facto challenge was non-forfeitable in
any event. Judge Rogers and Kavanaugh also highlighted
a circuit split that the majority had created on the
forfeitability of ex post facto claims specifically and
claims challenging statutes’ facial constitutionality
generally. App. 388, 449.
On the merits, respondent conceded the applicability
of the Ex Post Facto Clause and the Circuit assumed
without deciding that it applied. The Circuit unanimously
vacated petitioner’s convictions for solicitation and
material support for terrorism. The four-member majority,
however, affirmed the conspiracy conviction, finding
that it was “not a plain ex post facto violation to transfer
jurisdiction over [18 U.S.C 2332(b)] from an Article III
court to a military commission,” App. 332, and it was “not
‘obvious’ that conspiracy was not traditionally triable by
law-of-war military commission under [10 U.S.C.] 821.”
App. 346. Judges Kavanaugh and Brown would have
affirmed on de novo review and solely based on the
scope of 10 U.S.C. 821. Judge Rogers dissented on de
novo review, adhering to Judge Kavanaugh’s reasoning
in Hamdan II. The Court then remanded the case
back to the panel so that it could to decide petitioner’s
remaining claims.

 12
D.C. Circuit’s Second Panel Decision. On remand,
the panel vacated petitioner’s conviction for conspiracy,
holding “petitioner’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.” App. 205. The majority ruled that de
novo review was required given the Article III challenge’s
structural character and given respondent’s concession
that de novo review applied both before the USCMCR and
before the panel. App. 167. Judge Henderson dissented,
arguing that plain error review should apply and that
“the definition and applicability of international law
is, in large part, a political determination[.]” App. 217.
(Henderson, J., dissenting) (citations omitted). The panel
reserved judgment on the remaining grounds.
The D.C. Circuit’s Second En banc Decision.
Respondent again petitioned for rehearing en banc.
The Circuit granted rehearing and directed the parties
to address the standard of review and the scope of
Congress’ power under the Define & Punish Clause.
On October 20, 2016, the Circuit issued a per curiam
opinion affirming the judgment of the USCMCR, in
turn affirming petitioner’s conviction of conspiracy
and rejecting petitioner’s outstanding equal protection
challenge. App. 4. Five opinions were issued for the ninemember court. None garnered a majority. Judges Tatel,
Rogers, and Pillard issued a joint dissent.
On the standard of review, the Circuit held 7-2 that
petitioner’s Article III challenge was subject to de novo
review. Judges Henderson and Millet filed opinions
arguing that the plain error rule should apply and that
petitioner’s conspiracy conviction survived plain error
review, albeit for different reasons.
Applying de novo review, Judge Kavanaugh, joined
by Judges Brown and Griffith, would have ruled that it

 13
was within Congress’ Article I power to make conspiracy
triable by military commission. Based upon the historical
practice of the political branches ostensibly reflected
in the military trial of the Lincoln Assassins and Nazi
Saboteurs, Judge Kavanaugh concluded that Congress
could also exempt conspiracy from Article III. Judge
Wilkins, writing only for himself, would have affirmed
petitioner’s conspiracy conviction, in effect, on harmless
error grounds.
The joint dissent would have ruled that this Court
“has recognized a limited Article III exception for the
prosecution of internationally recognized war crimes in
military tribunals.” App. 140. The joint dissent found that
respondent “offered no reason—rooted in history, the
Constitution, case law, or anything else—for extending
that exception further.” Ibid. Because conspiracy was
concededly not an internationally recognized war
crime, the joint dissent concluded that it could not be
diverted from the Article III courts. The joint dissent also
disputed the historical accuracy of Judge Kavanaugh’s
characterization of the Lincoln and Saboteur cases.
Six judges ruled against petitioner’s equal protection
claim, though divided on the standard of review. Judge
Kavanaugh, joined by Judges Brown and Griffith, relied
upon his separate opinion in the first en banc rehearing,
rejecting petitioner’s equal protection claim de novo.
App. 4. Judge Henderson also joined Judge Kavanaugh’s
opinion, but would have subjected all of petitioner’s
claims to plain error review. App. 221. Judge Millet,
joined by Judge Wilkins, rejected petitioner’s equal
protection challenge only on plain error review. App. 80.
The joint dissent did not address the issue.
Petitioner filed a timely petition for rehearing. On
November 28, 2016, the Circuit denied rehearing. This
petition followed.

 14
REASONS FOR GRANTING THE PETITION
I.  
THIS COURT NEEDS TO
WHETHER CONGRESS MAY
WHOLLY DOMESTIC CRIMES,
CONSPIRACY, FROM ARTICLE

SETTLE
EXEMPT
SUCH AS
III.

Congress has created a permanent criminal justice
system that assumes the federal courts’ jurisdiction over
the trial of domestic crimes and operates within the
Executive Branch for all but the disposition of post-trial
appeals. Petitioner stands convicted of conspiracy, an
infamous crime that this Court has squarely held to be
within the exclusive jurisdiction of the courts of law.
Callan v. Wilson, 127 U.S. 540 (1888). While respondent
claims the benefit of this Court’s precedents respecting
the use of military commissions to try law-of-war offenses,
respondent also concedes that conspiracy is not a
war crime under international law. App. 6. This Court
is therefore squarely presented with a constitutional
question of fundamental importance: May Congress
vest these military commissions with the federal courts’
jurisdiction over wholly domestic crimes?
1.  As noted in the petition filed with this Court in
Nashiri v. Trump, this issue is made especially pressing
because these modern “military commissions” bear little
resemblance to the battlefield tribunals that supposedly
stand as their precedent. Pet. for Cert. in Nashiri v.
Trump (No. 16-___), 3-4. The trial in this case served no
“need to dispense swift justice,” but instead occurred
seven years after petitioner was taken into custody.
Hamdan, 548 U.S. at 607 (plurality op.). It took place, not
“on the battlefield,” but at a U.S. penal colony. Ibid. The
evidence introduced at trial was not salvaged from the fog
of war, but meticulously presented by law enforcement
agents, cooperating witnesses in the custody of the
Bureau of Prisons, and government-paid experts. And

 15
rather than prove his guilt for atrocities, prosecutors
convicted petitioner of inchoate crimes based on his
alleged collusion with a criminal organization.
Indeed, the military commission system operating in
Guantanamo is barely a military endeavor at all. These
tribunals operate, not under the authority of a battlefield
commander, but a civilian bureaucracy administered
under the Secretary of Defense. That is significant, in
part, because this Court has always been careful not to
extend the deference accorded the military’s wartime
operations to a “civilian agency” that does nothing but
brandish military auspices. Ex parte Endo, 323 U. S. 283,
298 (1944). But its overriding significance is that it lays
bare the stakes of this case. This case is not about what
the military may do in wartime. It is about whether the
political branches may create a permanent competitor to
the federal courts within the civilian bureaucracy.
This Court has been left as the only court with
jurisdiction to answer the threshold question of what
criminal subject-matter jurisdiction may be withdrawn
from the Article III courts and given to these tribunals.
While there is no circuit split, the Circuit’s failure to issue
a controlling opinion has had the same effect. By statute,
10 U.S.C. 950g(a), and this Court’s decisions, Gherebi v.
Bush, 374 F.3d 727, 739 (9th Cir. 2004), the D.C. Circuit
has exclusive jurisdiction over Guantanamo issues
generally and the military commissions specifically.
When sitting en banc, its word is final unless this Court
grants review. But after granting rehearing en banc for a
second time in this case, no opinion garnered a majority,
forcing the Circuit to issue a per curiam order supported
by six of its members, who concurred only in the result
in four divergent opinions. Like when the en banc
Federal Circuit fails to resolve legal questions within its
exclusive jurisdiction, responsibility for settling what

 16
the law is now rests with this Court alone. See, e.g., Alice
Corp. Pty. v. CLS Bank Int’l, 134 S.Ct. 2347, 2353 (2014).
Compounding matters, if this Court does not grant
certiorari, the governing law for the foreseeable future
will be the USCMCR’s decision from 2011. This fact has
already been noted in a capital military commission
that remains pending in Guantanamo. United States
v. Nashiri, AE048U (Feb. 2, 2017). This is truly an
absurd result. The reasoning of the USCMCR’s decision
is so questionable that it has been ignored or rejected
outright by all eight members of the D.C. Circuit to have
written opinions in this case. In fact, the USCMCR’s
core premise – that conspiracy to commit terrorism
constituted an offense under the international law of
war – was abandoned by respondent as soon as this case
reached the Circuit. A decision that has been abandoned
or rejected at every turn, therefore, now threatens to
govern for the next decade by simple default.
This case squarely asks this Court to resolve a
question of exceptional importance that the D.C. Circuit
could not. The prosecution of conspiracies is the most
routine and emblematic exercise of federal criminal
jurisdiction in use today. The encroachment into the role
of the judiciary under Article III in this case is neither
“slight” nor “innocuous at first blush.” Stern v. Marshall,
564 U.S. 462, 503 (2011). Instead, “this wolf comes as
a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988)
(Scalia, J., dissenting). It tells the public that the federal
courts are not up to the task of adjudicating some of the
highest profile criminal cases in this country’s history
and it dilutes the status of federal judges as readily
replaceable by the Department of Defense. This Court
must decide whether the war powers broadly construed
allow the political branches to re-allocate the judicial
power over domestic crimes to special tribunals within
the Executive Branch.

 17
2.  This Court should also grant certiorari because
the prosecution of inchoate conspiracy charges before
military commissions requires a substantial break, if not
explicit overruling, of this Court’s key precedents on
military commission jurisdiction. In Quirin, this Court
articulated two minimum conditions that determine
“whether it is within the constitutional power of the
National Government to place petitioner[] upon trial
before a military commission for the offenses with which
[he was] charged.” Quirin, 317 U.S. at 29. To be “triable
by military tribunal,” the offenses charged must be both:
1) “recognized by our courts as violations of the law of
war” and 2) not otherwise included among “that class of
offenses constitutionally triable only by a jury.” Ibid.
The first condition is rooted in the textual limits of
Congress’ power under the Define & Punish Clause,
Article I § 8, cl. 10, to vest military commissions with
jurisdiction over “offenses against the law of nations.”
Quirin, 317 U.S. at 28; In re Yamashita, 327 U.S. 1, 7
(1946). The second condition is rooted in Article III’s
independent reservation of the “trial of all crimes” to
the courts of law. “Offenses” against the law of war,
like petty offenses, are not considered “crimes” within
the meaning of Article III. Quirin, 317 U.S. at 29, 39-40;
see also Military Commissions, 11 U.S. Op. Atty. Gen.
297, 312-13 (1865) (“Infractions of the laws of nations
are not denominated crimes, but offenses. … Offenses
against the laws of war must be dealt with and punished
under the Constitution as the laws of war, they being a
part of the law of nations, direct; crimes must be dealt
with and punished as the Constitution, and laws made
in pursuance thereof, may direct.”) (original emphasis).
As respondent concedes, conspiracy is not “recognized
in international law as [a] violation[] of the law of war.”
Yamashita, 327 U.S. at 14; see also App. 8, 113, 180,
209. The leading authorities on international law and

 18
U.S. war crimes practice are unanimous. “United States
Military Tribunals … have not recognized as a separate
offense conspiracy to commit war crimes or crimes
against humanity.” 15 L. Rep. Trials of War Criminals 90
(1950); see also App. 113-120 (joint dissent) (collecting
authorities).
Conspiracy is also an infamous crime “of the class
traditionally triable by jury at common law.” Quirin, 317
U.S. at 40. And in Quirin, this Court strongly suggested, if
not implicitly held, that it was not triable as a stand-alone
offense in a military commission. In setting forth the
scope of “the right to jury trial as it had been established
by [Article III § 2],” id. at 39, Quirin placed special
emphasis on Callan v. Wilson, 127 U.S. 540 (1888). This
Court’s decision in Callan, in turn, held that the standalone offense of conspiracy was triable only by jury even
where the object offense of the conspiracy might not be.
Callan, 127 U.S. at 556.
3.  Judge Kavanaugh’s opinion, which was the only
opinion to affirm joined by other members of the Circuit,
fails to answer the Article III problem at the center of this
case. Indeed, Judge Kavanaugh admitted that “[b]ased
solely on the text of Article III, [petitioner] might have a
point.” App. 23. Judge Kavanaugh instead dedicated most
of his opinion to rejecting the argument that Congress’
legislative power is constrained by international law.
When he turned to the Article III question, Judge
Kavanaugh admitted that he could offer no rule to define
the “outer limits of the Constitution in this context,
other than to say that international law is not such a
limit.” App. 28. And he highlighted his concern that even
cyber-attacks might be triable by military commission
without such a rule. Ibid. In place of a legal rule, Judge
Kavanaugh deferred to “the historical practice of the
Legislative and Executive Branches,” which he asserted

 19
embraced the military trial of conspiracy charges in the
Lincoln Assassins and Nazi Saboteur cases. App. 16.
As an initial matter, Judge Kavanaugh’s exclusive
reliance on the practice of the political branches does
not answer the question presented here. When this Court
answers separation-of-powers questions by reference
to historical practice, it looks to the historical practice
of the branches whose powers are involved. Zivotofsky
v. Kerry, 135 S.Ct. 2076, 2091 (2015). The Lincoln and
Saboteur episodes reflect – at most – the practice of the
political branches, not the courts; the branch whose core
constitutional responsibilities are under assault.
These two episodes also do not demonstrate the kind
of “firmly established historical practice” that is necessary
to establish an exemption from Article III. Stern, 564 U.S.
at 504-05 (Scalia, J., concurring). As the joint dissent noted
below, even if these cases involved conspiracy charges
(which is by no means obvious), they also involved
completed war crimes and jurisdictional facts – such as
martial law – not present here. App. 136-140. And whatever
they may be examples of, it is doubtful that these two
isolated episodes deserve to be given any precedential
value at all. Prior to this litigation, both had earned
degrees of infamy unusual in the annals of American
criminal law. Martin Lederman, The Law(?) of the Lincoln
Assassination, 118 Columbia L. Rev. ___ (2018) (“They are
aberrant cases, noteworthy in large measure because they
deviated so dramatically from the norm.”).1
In the fifteen years since the attacks of September
11, 2001, more than 488 terrorism cases have been
successfully prosecuted in federal court, the vast
majority involving the crimes of conspiracy and material
support for terrorism. Center on National Security,
 

  Available at https://ssrn.com/abstract=2854195

1

 20
Statistical Analysis (Feb 24, 2017);2 Tom Hays, As Trump
touts Guantanamo, civilian prosecutors notch wins,
Associated Press (Mar. 17, 2017).3 The time is right for this
Court to reaffirm that the Lincoln and Saboteur cases
are legal exceptions, confined to their unique historical
circumstances. The war on terrorism is not a civil war in
which vast swaths of this country subsist under martial
law. It is not a world war between the greatest industrial
powers on earth. As this Court held in Hamdan, the
resort to military commissions depends upon “military
necessity.” Hamdan, 548 U.S. at 590. This Court should
grant certiorari to hold that the federal courts’ duty to
preside over the trial of all crimes is not optional.
II. 
THIS COURT MUST DETERMINE
WHETHER
CONGRESS
MAY
CODIFY CRIMES AND MAKE THEM
RETROACTIVELY APPLICABLE BY
LEGISLATIVELY DETERMINING THAT
ITS OWN STATUTE IS DECLARATIVE OF
EXISTING LAW.
Even assuming Congress has the power to divert the
prosecution of non-war crimes to military commissions,
every trial in Guantanamo has involved crimes committed
before the enactment of the Military Commissions Act
of 2006. Here, petitioner was prosecuted under a law
passed five years after his arrest and nearly three years
after he was first charged. The retroactivity question
presented is therefore extraordinary and implicates the
precise separation of powers danger that the presumption
against retroactivity and the Ex Post Facto Clause aim to
prevent: the political branches’ arrogation of the power
to say what the law is, as opposed to what the law will be.
 

2

 

3

  Available at https://perma.cc/A32Y-FLWY
  Available at https://perma.cc/8WBA-BCLX

 21
1.  Prior to 2006, the only statute conferring subjectmatter jurisdiction on military commissions was the
Uniform Code of Military Justice (UCMJ). Hamdan, 548
U.S. at 593-94. The UCMJ proscribed aiding the enemy
and spying specifically and vested military commissions
with jurisdiction over offenses under the “law of war”
generally. 10 U.S.C. 821, 904, 906. Whether conspiracy or
any other crime enumerated in the Military Commissions
Act is being applied retroactively therefore turns on
whether the Act’s specification of that crime merely
re-codified one of the “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” under the UCMJ. Quirin, 317 U.S. at 28.
While this Court split 4-3 in Hamdan over whether
conspiracy was a war crime under international law,
one of the few points of unanimity was that “the law
of war is derived not from domestic law but from the
wartime practices of civilized nations, including the
United States[.]” Hamdan, 548 U.S. at 701 n.14 (Thomas,
J., dissenting); id. at 641 (Kennedy, J., concurring); id.
at 601-11 (plurality op.). This common-sense definition
of the “law of war” was unanimously accepted by the
panel that decided Hamdan II, when it held “The ‘law of
war’ cross-referenced in [the UCMJ] is the international
law of war.” 696 F.3d at 1241. And though contrary to
Justice Thomas’ dissent in Hamdan, respondent has
now stipulated that the position of the United States is
that conspiracy was not and is not a war crime under
international law.
Petitioner’s conviction for the stand-alone conspiracy
offense therefore presents two questions that confront
every currently pending military commission: 1) does the
Military Commissions Act’s codification of new crimes,
such as conspiracy, overcome the presumption against

 22
retroactivity; and 2) if so, does its retroactive proscription
of those crimes violate the Ex Post Facto Clause?
2.  With respect to the Military Commissions Act’s
retroactive scope, the Circuit divided over whether it
evinced a sufficiently “clear congressional intent” to
apply retroactively. Martin v. Hadix, 527 U.S. 343, 354
(1999). In Hamdan II, the panel concluded that the Act
was at best ambiguous and to the extent it augmented, as
opposed to simply re-codified, the jurisdictional scope of
the UCMJ, “Congress would not have wanted new crimes
to be applied retroactively.” Hamdan II, 696 F.3d at 1248
(original emphasis). Based on this holding, respondent
conceded that petitioner’s conviction had to be vacated.
App. 453.
On rehearing this case en banc, the Circuit overruled
Hamdan II, finding the statute “is unambiguous in its
intent to authorize retroactive prosecution for the crimes
enumerated in the statute—regardless of their preexisting law-of-war status[.]” App. 317. For the reasons
stated in Hamdan II as well as this Court’s cases
respecting how the temporal scope of all laws – and
criminal laws in particular – must be construed, this
Court should correct the majority’s finding that the
Military Commissions Act overcame the presumption
against retroactivity.
3.  If this Court agrees with the Circuit on the
statutory question, the resulting Ex Post Facto Clause
question must be resolved because at least three of its
implications are far-reaching. First, ongoing military
commissions have been bogged down by uncertainty over
whether they may exercise jurisdiction over crimes first
criminalized in the Military Commissions Act. As Judge
Brown argued below in dissent, without this Court’s
review, “it may be many years before the government
receives a definitive answer on whether it can charge the

 23
September 11 perpetrators with conspiracy, or whether
Congress has the power to make such an offense triable
by military commission even prospectively.” App. 416.
(Brown, J., dissenting in part).
Second, the ambiguity over the Military Commissions
Act’s retroactive scope stems from Congress’ stated
intention to declare the law, rather than to enact the law.
Instead of giving the Act’s punitive sections unambiguous
retroactive applicability through the usual method of an
effective date provision, Congress enacted 10 U.S.C.
950p (2006). Section 950p was a self-styled statement of
“purpose” and “effect,” which stated that the Act did “not
establish new crimes” but instead was “declarative of
existing law” and therefore did not preclude prosecution
for pre-enactment conduct.
This Court must therefore decide whether the
statutory declaration of existing law violates the Ex Post
Facto Clause when it “alters the definition of criminal
conduct” after the fact. Lynce v. Mathis, 519 U.S.
433, 441 (1997). This Court has historically invalidated
declaratory laws as an unconstitutional effort by
Congress to substitute its interpretation of pre-existing
law for the judiciary’s. Postmaster-General v. Early,
12 Wheat. 136, 148-49 (1827) (Marshall, C.J.); 1 Kent’s
Comm. on Am. L. 513, n.b (10th ed. 1860). This case,
where Congress has unequivocally stated its intent to
pass a declaratory law, affords the Court an opportunity
to provide guidance on whether and how such laws may
be given retroactive effect.
Third, the Circuit’s decision has created uncertainty
respecting the meaning of the “law of war.” Having
stipulated that conspiracy was not a war crime as that
term has traditionally been understood, respondent was
forced to argue below that UCMJ’s use of the phrase “law
of war” encompassed not simply offenses under the law

 24
of armed conflict but also a heretofore unrecognized
“U.S. Common Law of War.” Hamdan II, 696 F.3d at
1252. The Circuit did not accept this argument outright.
Instead, for reasons stated supra, the Circuit applied
the plain error rule, concluded that it was not plain that
the law of war is “limited to the international law of
war,” and therefore left the meaning of the “law of war”
unsettled. App. 341.
Respondent’s novel re-definition of the “law of war”
has profound consequences. That phrase is used in at
least twenty-one sections of the U.S. Code to define
and constrain Executive power over everything from
federal jurisdiction, 28 U.S.C. 1442a, to the seizure of
private property. 50 U.S.C. 2204. The law of war defines
the source and limits of the Executive’s power to detain
citizens, Hamdi v. Rumsfeld, 542 U.S. 507, 548 (2004), and
to target citizens in drone strikes. Al-Aulaqi v. Panetta,
35 F.Supp.3d 56, 64 n.13 (D.D.C. 2014). As the fount of
Executive power yielding so many serious consequences
over the past fifteen years, the law of war cannot have a
quixotic or indefinite meaning for years to come.
III. 
THE SEGREGATION OF THE
CRIMINAL
JUSTICE
SYSTEM
PRESENTS A QUESTION OF
EXCEPTIONAL IMPORTANCE THAT
THIS COURT MUST ADDRESS.
The Military Commissions Act limits the military
commissions’ personal jurisdiction to non-citizens. 10
U.S.C. 948c. For only the second time in U.S. history,
therefore, Congress has attempted to segregate the criminal
justice system to deprive non-citizens of a judicial trial.
The first was the Chinese Exclusion Acts’ provision
for the prosecution of non-citizen Chinese before
commissioners for immigration law violations. 27 Stat. 25.

 25
This Court struck that law down because equal justice
is guaranteed in this country “without regard to any
differences of race, of color, or nationality, and the equal
protection of the laws is a pledge of the protection of
equal laws” Wong Wing, 163 U.S. at 238 (quoting Yick Wo
v. Hopkins, 118 U.S. 356, 369 (1886)). Accordingly, “even
aliens shall not be held to answer for a capital or other
infamous crime unless on a presentment or indictment of
a grand jury, nor be deprived of life, liberty, or property
without due process of law.” Ibid.
Here, Congress has gone even further because unlike
the immigration laws at issue in Wong Wing, these
military commissions’ subject-matter jurisdiction is
neither germane to nor necessarily depends upon the
defendant’s nationality. Instead, they exercise jurisdiction
over a broad range of offenses for which citizens and
non-citizens are prosecuted with regularity. See, e.g.,
United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011)
(affirming the convictions of two citizens, José Padilla
and Kifah Jayyousi, along with a non-citizen, Adham
Hassoun, of conspiracy, material support, and other
“offenses relating to their support for Islamist violence
overseas.”).
There is simply no good precedent for the wholesale
denial of equal justice under law presented here. The
closest analogs are the special magistrate courts and
commissions of oyer and terminer used during the
antebellum period for the prosecution of slaves. See
Thomas D. Morris, Southern Slavery and the Law, 16191860 210-15 (1996); State v. Kentuck, 8 La.Ann. 308, 309
(1853). This Court never ratified the segregation of that
particular category of non-citizens into summary justice
systems and its incompatibility with the Constitution’s
most basic post-Civil War guarantees is now self-evident.
“Both equal protection and due process emphasize the
central aim of our entire judicial system: all people

 26
charged with crime must, so far as the law is concerned,
‘stand on an equality before the bar of justice in every
American court.’” Griffin v. Illinois, 351 U.S. 12, 17
(1956) (quoting Chambers v. Florida, 309 U.S. 227, 241
(1940)).
That the Military Commissions Act styles its tribunals
as “military commissions” only highlights what a profound
break this law presents from this country’s precedents
and principles. Military commissions have always tried
suspected citizen war criminals right alongside noncitizens. See, e.g., Quirin, 317 U.S. at 37-38. In fact, it
was the racialist powers of Imperial Japan and Nazi
Germany that segregated war crimes suspects based
upon citizenship. United States v. Von Leeb, et al., 12 L.
Rpts. of Trials of War Criminals 1, 37 (1949) (Night and
Fog Decree); United States v. Sawada, et al., JAGO File
No. 119-19-5, ex. 25, at 6 (1946) (Military Law for the
Japanese Expeditionary Army in China). In response,
one of the principal lessons enshrined into the Geneva
Conventions was the rejection of discriminatory justice.
I.C.R.C., Commentary: III Geneva Convention Relative to
the Treatment of Prisoners of War 623 (1960). (“Nationals,
friends, enemies, all should be subject to the same rules
of procedure and judged by the same courts. There is
therefore no question of setting up special tribunals to
try war criminals of enemy nationality.”).
The Circuit rejected petitioner’s challenge, reasoning
that the federal government may discriminate based
upon alienage in furtherance of national security. App.
441-42. Given the D.C. Circuit’s outsized influence
among the circuit courts, this blanket deference to the
political branches’ views respecting their constitutional
obligations is likely to have far reaching consequences.
See, e.g., Hernandez v. United States, 785 F.3d 117, 127
(5th Cir. 2015) cert. granted 137 S.Ct. 291 (2016) (relying on
Bahlul to limit the Constitution’s extraterritorial scope).

 27
Yet, this uncritical deference is contrary to this Court’s
precedents and unjustified by the legislative record.
This Court has consistently held that, consistent
with its text, the Fifth Amendment protects every
person “from invidious discrimination by the Federal
Government” regardless of citizenship. Plyler v. Doe,
457 U.S. 202, 210 (1982). “When the Federal Government
asserts an overriding national interest as justification
for a discriminatory rule which would violate the Equal
Protection Clause if adopted by a State, due process
requires that there be a legitimate basis for presuming
that the rule was actually intended to serve that interest.”
Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976).
Here, no rational national security objective is served
by limiting military commissions’ personal jurisdiction
to non-citizens. Not only is doing so unprecedented,
the threat posed by enemies with citizenship is at least
as great as that posed by non-citizens. Citizens are
just as capable of joining al Qaeda, just as capable of
perpetrating acts of terrorism, and “if released, would
pose the same threat of returning to the front during the
ongoing conflict.” Hamdi, 542 U.S. at 519 (plurality op.).
Furthermore, Congress’ choice to discriminate based
upon nationality was not motivated by a finding that
non-citizens are somehow not amenable to prosecution
alongside citizens. Instead, the legislative history is
replete with statements by lawmakers reflecting a
fear of the political accountability that would result if
constituents had to bear the law’s burdens as well. As
just one example, Rep. Buyer felt compelled to reassure
his colleagues that terrorism suspects equally situated in
all respects except citizenship would be segregated on
that basis alone:
Let’s say an American citizen has been arrested
for aiding and abetting a terrorist, maybe even

 28
participating in a conspiracy, or maybe participating
in an action that harmed or killed American
citizens. That American citizen cannot be tried
in the military commission. His coconspirators
could be tried in a military commission if they
were an alien, but if that other coconspirator is an
American citizen, they will be prosecuted under
title 18[.]
152 Cong. Rec. H7940 (Sept. 27, 2006) (statement of Rep.
Buyer). The Military Commissions Act is by design a law
that “lays an unequal hand on those who have committed
intrinsically the same quality of offense,” which is no
less “invidious a discrimination as if it had selected a
particular race or nationality for oppressive treatment.”
McLaughlin v. Florida, 379 U.S. 184, 194 (1964).
If the federal criminal justice system is to be
segregated in this way, this Court should settle that fact
now. At present, twenty-three million people are subject
to this law within the United States. U.S. Census Bureau,
American Fact Finder.4 Of the eight convictions the
military commissions have yielded thus far, at least one
defendant had lawful status. Matthew Hay Brown, From
Owings Mills High School to a cell at Guantanamo, The
Baltimore Sun (Mar. 3, 2012).5 The jurisdictional reach
of these tribunals is potentially unlimited and already
includes such broadly inchoate crimes as conspiracy
and material support for terrorism, which can sweep
in everything from financial crime, United States v.
Awan, 607 F.3d 306 (2d Cir. 2010), to drug trafficking.
United States v. Rubio, 677 F.3d 1257 (D.C. Cir. 2012).
And given the amount of time that the post-conviction
appeals take, countless prosecutions may go through
this system before this Court has another opportunity to
 

4

 

5

  Available at https://perma.cc/JZ83-8AHJ
  Available at https://perma.cc/4FB9-ATS5

 29
decide whether the threat of terrorism renders separate
and unequal justice necessary for the first time in this
nation’s history.
IV. THE CIRCUIT’S INVOCATION OF THE
PLAIN ERROR RULE TO AVOID
DECIDING THE EX POST FACTO AND
EQUAL PROTECTION GROUNDS WAS
ERRONEOUS AND HAS RESULTED IN
NOTHING BUT LEGAL UNCERTAINTY.
As noted supra, the Circuit avoided a decision
on the merits of petitioner’s ex post facto and equal
protection challenges by resort to the plain error rule.
In the D.C. Circuit, the “plainness” of the error is treated
as a threshold question. If the appellant cannot cite
“clear precedent in the Supreme Court or this circuit”
demonstrating error, further review – even of whether
there was error at all – is foreclosed. United States v.
Terrell, 696 F.3d 1257, 1260 (D.C. Cir. 2012). Here, the
Circuit’s reach for the plain error rule was erroneous.
Moreover, as pure questions of law, the issues before
this Court are presented squarely and any ambiguity over
the adequacy of petitioner’s trial-level objections in no
way impairs this Court’s ability to provide much needed
clarity now.
1.  As a threshold matter, the record shows that the
Circuit’s findings of trial-level forfeiture below were, at
best, the result of ambiguity over petitioner’s objections,
not petitioner’s failure to object at all. “[A]lthough not a
model of clarity,” petitioner complained about the law’s
retroactivity in a manner that “was sufficient to preserve
those arguments.” App. 395 (Brown, J., dissenting in part).
And with respect to equal protection, petitioner asserted
“discrimination based on nationality” as Objection #7 of
the written Nine Points described supra. The stringency
of the Circuit’s pleading requirements, therefore, departs

 30
from the liberal construction ordinarily afforded to
arguments raised by pro se defendants, Estelle v. Gamble,
429 U.S. 97, 106 (1976), and the standard ordinarily
applied to preservation questions generally. Ford v.
Georgia, 498 U.S. 411, 419 (1991).
The majority below could also point to no prejudice
resulting from any ambiguity in petitioner’s trial-level
objections. The issues presented were pure questions
of law that have loomed over the military commissions
since their inception and which had been decided in
respondent’s favor by every other military commission
at the time of petitioner’s trial.6 What possible benefit
would have come from petitioner more fulsomely raising
then-futile objections at trial is unclear. And no judicial
economy interest was served by the majority’s invocation
of plain error six years into the appellate process. The
only thing the majority’s stringent application of plain
error has assured is that every military commission
defendant now feels compelled to make “a long and
virtually useless laundry list of objections,” pleaded from
every conceivable legal angle, to avoid the accusation
of forfeiture in a legal system plagued at every level by
novelty and uncertainty. Johnson v. United States, 520
U.S. 461, 468 (1997).
2.  On the law, the majority erred by importing
Fed.R.Crim.Pro. 52’s plain error rule into its appellate
review. Rule 52 does not apply to military commissions
and there is no comparable provision in the Military
Commissions Act, the Rules for Military Commissions,
or the applicable regulations. To the contrary and as
6
 
  United States v. Khadr, AE077 (Mar. 15, 2008) (equal
protection); United States v. Khadr, AE089 (Apr. 21, 2008) (ex post
facto); United States v. Hamdan, AE211 (Jun. 1, 2008) (ex post facto);
United States v. Hamdan, AE288 (Jul. 15, 2008) (equal protection);
United States v. Darbi, AE039 (Aug. 8, 2008) (ex post facto); United
States v. Darbi, AE040 (Aug. 8, 2008) (equal protection)

 31
the dissenters noted below, ex post facto objections go
squarely to whether the charge fails to state an offense,
which is a non-forfeitable objection under the Rules for
Military Commissions. App. 387 (Rogers, J., dissenting
in part); App. 449 (Kavanaugh, J., dissenting in part).
Likewise, as a matter of long-standing military law,
constitutional and statutory defects in “jurisdiction over
the person … may not be the subject of waiver.” United
States v. Garcia, 5 C.M.A. 88, 94 (C.M.A. 1954); see also
United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000)
(“When an accused contests personal jurisdiction on
appeal, we review that question of law de novo[.]”).
3.  Finally, there is uncertainty in the lower courts
over whether claims, such as petitioner’s ex post facto
and equal protection claims, would be subject to the plain
error rule even had they arisen in a federal district court.
As a matter of first principles, allowing a conviction to
stand based on nothing more than trial-level forfeiture is
irreconcilable with the axiom that an “unconstitutional
law is void, and is as no law. An offence created by
it is not a crime. A conviction under it is not merely
erroneous, but is illegal and void, and cannot be a legal
cause of imprisonment.” Ex parte Siebold, 100 U.S. 371,
376-77 (1880). Avoiding the merits of such objections on
plain error grounds also creates a wasteful procedural
anomaly because they, by definition, implicate “the
scope of the underlying criminal proscription.” Welch
v. United States, 136 S.Ct. 1257, 1266 (2016). Assuming
this Court or the D.C. Circuit favorably decides the
questions presented here in another case a decade from
now, petitioner can obtain relief in a post-trial collateral
attack that the Circuit held is precluded on direct appeal.
28 U.S.C. 2255(f)(3). Neither judicial economy nor the
orderly administration of justice is served by such a
labyrinthine procedure for obtaining relief on a pure
question of law.

 32
This Court has never extended the plain error rule to
pure questions of law respecting the constitutionality of
a statute. And as Judge Kavanaugh noted in dissent, other
circuits “have determined that constitutional objections
such as Ex Post Facto Clause claims … may be raised
for the first time on appeal and reviewed de novo even
if those objections were not timely raised in the district
court proceedings.” App. 449 (Kavanaugh, J., dissenting
in part); see also App. 388-39 (Rogers, J., dissenting in
part) (collecting cases from other circuits). In fact, the
Tenth Circuit has squarely held that ex post facto claims
are not subject to forfeiture. United States v. Haddock,
956 F.2d 1534 (10th Cir. 1992). Among the other important
merits issues presented, therefore, this case provides
this Court an opportunity to resolve uncertainty in the
lower courts over whether facial challenges to a statute’s
constitutionality are subject to the plain error rule.

 33
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
MAJ Todd Pierce, JA,
USA (Ret.)
Senior Fellow
Univ. of
Minnesota Human
Rights Center
Mondale Hall, N-120
229-19th Avenue South
Minneapolis, MN 55455

March 28, 2017

Michel Paradis
Counsel of Record
Mary R. McCormick
U.S. Department of Defense
Military Commission Defense
Organization
1620 Defense Pentagon
Washington, DC 20301
1.703.695.4672
michel.paradis@osd.mil