No. 16-1307

In The

Supreme Court of the United States
♦

ALI HAMZA AHMAD SULIMAN AL BAHLUL,
Petitioner,

v.
UNITED STATES,
Respondent.
♦

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

REPLY BRIEF FOR PETITIONER
♦

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

September 19, 2017

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.................................................. ii
REPLY.................................................................................... 1
I.  GIVING MILITARY COMMISSIONS
SUBJECT-MATTER JURISDICTION
OVER DOMESTIC CRIMES PRESENTS
A CONSTITUTIONAL QUESTION OF
EXCEPTIONAL IMPORTANCE AND
THE LOWER COURT DIVIDED ON
THE ANSWER......................................................... 1
II.  THE RETROACTIVE PROSECUTION
OF CRIMES FIRST CODIFIED IN THE
MILITARY COMMISSIONS ACT RAISES
TWO QUESTIONS OF EXCEPTIONAL
IMPORTANCE......................................................... 8
III. 
SEGREGATING
THE
FEDERAL
CRIMINAL
JUSTICE
SYSTEM
IS SO UNPRECEDENTED AND
BROADLY
SIGNIFICANT
THAT
THIS COURT SHOULD DECIDE ITS
CONSTITUTIONALITY NOW................................ 9
CONCLUSION..................................................................... 11

 ii
TABLE OF AUTHORITIES
Page
CASES
CFTC v. Schor, 478 U.S. 833 (1986)................................... 6
Ex parte Milligan, 4 Wall. 2 (1866)................................... 7
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)................... 1, 7
Hamdan v. United States, 696 F.3d 1238
(D.C. Cir. 2012)............................................................... 3
Korematsu v. United States, 323 U.S. 214 (1944)........... 7
Snyder v. Phelps, 562 U.S. 443 (2011)............................... 7
Stern v. Marshall, 564 U.S. 462, 483-84 (2011)............. 2, 6
United States v. Ghailani, 743 F. Supp. 2d 261
(S.D.N.Y. 2010)................................................................ 5
United States v. Hamdan, 801 F.Supp.2d 1247
(U.S.C.M.C.R. 2011)........................................................ 9
United States v. Hamdan, Ruling on Motion
to Dismiss for Lack of Jurisdiction, AE084
(Dec. 19, 2007).............................................................. 10
Wong Wing v. United States, 163 U.S. 228 (1896)......... 10
OTHER AUTHORITIES
Bahlul v. United States, Case No. 11-1324,
Argument Transcript (D.C. Cir., Dec. 1, 2015)............ 7
Bahlul v. United States, Case No. 11-1324,
Argument Transcript (D.C. Cir., Oct. 22, 2014).......... 5
Bahlul v. United States, Case No. 11-1324,
Brief of the United States (D.C. Cir., Nov. 2, 2015)... 3

 iii
Bahlul v. United States, Case No. 11-1324,
Petition for Rehearing En Banc
(D.C. Cir., Jul. 27, 2015)................................................. 1
Bahlul v. United States, Case No. 11-1324,
Petition for Rehearing En Banc
(D.C. Cir., Mar. 5, 2013)................................................. 9
Carol Rosenberg, Guantanamo Plea Deal
Unveils New Trial Strategy, Miami Herald
(Feb. 27, 2012)................................................................ 5
Guantanamo By the Numbers, Miami Herald................. 5
Neal Katyal, Equality in the War on Terror,
59 Stan. L. Rev. 1365 (2007)........................................ 10
United States v. Bahlul, Case No. 09-001, Brief
of the United States (U.S.C.M.C.R.,
Oct. 21, 2009).............................................................. 3, 4
United States v. Nashiri, Government Motion
for a Ruling that the Military Commissions
Act of 2009 Does Not Violate Equal
Protection, AE058 (Mar. 12, 2012)............................. 10

 1
REPLY
I.  GIVING MILITARY COMMISSIONS SUBJECTMATTER JURISDICTION OVER DOMESTIC
CRIMES PRESENTS A CONSTITUTIONAL
QUESTION OF EXCEPTIONAL IMPORTANCE
AND THE LOWER COURT DIVIDED ON THE
ANSWER.
This Court should grant certiorari because the D.C.
Circuit could not resolve a constitutional question of
exceptional importance: To what extent can the political
branches give administrative tribunals jurisdiction over
the trial of ordinary federal crimes? Respondent attempts
to minimize the importance of this question, Br. in Opp.
19, 25-26, but its arguments are not credible. When a
panel of the D.C. Circuit ruled against respondent on
that question in 2015, respondent took the extraordinary
step of petitioning for rehearing en banc a second time,
arguing “the decision presents a question of exceptional
importance meriting en banc review.” Bahlul v. United
States, Case No. 11-1324, Petition for Rehearing En Banc,
15 (Jul. 27, 2015), available at https://goo.gl/gp8vLA.
Respondent never explains why the question presented
was of exceptional importance when it lost in the court
below, but is trivial now that it has nominally prevailed.
In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), this Court
invited Congress to modify the Uniform Code of Military
Justice’s pretrial, trial, and post-trial procedures, so that
military commanders could deviate from court-martial
practice to meet the necessities of a modern battlefield.
Id. at 636 (Breyer, J., concurring). But Congress went
much further than that with the Military Commissions
Act. It created an entirely new federal court system
that is administered by a large civilian bureaucracy and
exercises jurisdiction over high-profile cases involving
domestic law crimes. The “military commission” that

 2
convicted petitioner was not a military commission as
that term is traditionally understood. It was a new kind
of Executive Branch district court.
There is nothing in the text, history, or structure
of the Constitution that supports the creation of such
an open competitor to the federal judiciary. Textually,
Article III requires that the “trial of all crimes” be in the
courts of law. Historically, the Founders were deeply
suspicious of prerogative courts, whether they were the
much-hated vice-Admiralty courts or the infamous Star
Chamber. Stern v. Marshall, 564 U.S. 462, 483-84 (2011).
And there is nothing in the structure of the Constitution
that suggests the Executive Branch can be given the
option to divert federal prosecutions to its own special
trial chambers, unsupported by military necessity or a
Congressional declaration of war.
This Court therefore needs to decide whether the
threat of terrorism requires such a novel redistribution
of the Judicial Power. And the main reason it should do
so now is that the governing law on this question is in
disarray. The D.C. Circuit’s failure to resolve the issue
has imperiled a number of high-profile capital cases,
including the trial of the September 11th case. And it
compromises the integrity of the separation of powers
in ways that have implications far beyond the use of
military commissions in Guantanamo.
This case also comes to this Court with an unusually
well-developed appellate record. Members of the D.C.
Circuit articulated at least four different theories of
military commission jurisdiction for this Court to
consider. And respondent has put forward numerous
and contradictory theories of its case as this appeal has
made its way to this Court.1 Like a case coming up after
 At the USCMCR, respondent claimed that Congress was
entitled to near absolute deference, and alternatively, that conspiracy

 1

 3
a decade-long circuit split, a wide variety of arguments
have been researched, aired, and refined. The Court
is therefore in as good a position as it will ever be to
finally answer this fundamental jurisdictional question
with certainty.
Respondent nevertheless attempts to discourage this
Court from granting review based upon 1) a belatedly
made forfeiture argument that was thoroughly rejected
below; 2) its characterization of petitioner as an unsavory
character; and 3) its claim that the military commission
system is making do in the face of legal uncertainty. None
of these arguments gainsay the importance of the issues
involved. And respondent does not claim that there is
another case that will soon reach the Court with better
facts on which to resolve them. As things currently stand,
another post-trial appeal is unlikely to reach this Court
for another decade. And as is reflected in the petitionstage briefing in Nashiri v. Trump (No. 16-8966), those
cases will come to this Court as capital cases with vastly
was well established under international law. App. 480. In the D.C.
Circuit, it changed tacks and conceded that conspiracy was not
established under international law, but nevertheless asked for the
judicial recognition of a “U.S. common law of war,” that contained
these domestic law crimes. Bahlul v. United States, Case No.
11-1324, Brief of the United States 23 (D.C. Cir., May 16, 2012),
available at https://goo.gl/KfzLs4. Having lost that argument in the
parallel case of Hamdan v. United States, 696 F.3d 1238 (D.C. Cir.
2012), it dropped the “U.S. common law of war” brand in favor
of an even more amorphous reliance on “domestic precedents to
ascertain the scope of the authority Congress and the President have
traditionally exercised under their war powers.” Bahlul v. United
States, Case No. 11-1324, Brief of the United States 47 (D.C. Cir.,
Nov. 2, 2015), available at https://goo.gl/dP6BU5. And before this
Court, it appears to have reverted to the argument rejected by the
USCMCR, under which the war powers alone “support Congress’s
authority to confer jurisdiction on military commissions to try alien
unlawful enemy combatants for conspiracy to commit war crimes.”
Br. in Opp. 21.

 4
more complicated records. Simply as a matter of sound
judicial administration, therefore, respondent’s “vehicle”
arguments should be rejected. Respondent’s arguments
are also not credible in their own right.
1.  Respondent’s forfeiture argument is based on
the claim that the question presented is clouded by the
plain error rule. Br. in Opp. 16. For the reasons given in
the petition, this is legally incorrect. Pet. 29-32. And this
argument overwhelmingly failed below. It was rejected by
seven out of nine members of the D.C. Circuit, including
four who voted to affirm. Only two judges accepted this
argument, albeit for different reasons and with neither
joining the other’s dissenting opinion on this point.
Respondent is therefore asking this Court to ignore a
case that it has described as exceptionally important
because two members of the court below would have
relied upon a procedural default for reasons explicitly
rejected by every other judge to consider it. App. 7 n.1,
82, 98-106.
Respondent has also been inconsistent, indeed
opportunistic, in raising this forfeiture argument over
the past decade. Before the USCMCR, respondent
never raised a forfeiture objection or an entitlement to
plain error review. While it did make unavailing waiver
arguments, respondent stipulated that the first question
presented here “alleges a ground for relief that has not
been waived.” United States v. Bahlul, Case No. 09-001,
Brief of the United States 4 (U.S.C.M.C.R. Oct. 21, 2009),
available at https://goo.gl/d3yA3K. Before the Circuit,
respondent belatedly included a forfeiture argument
in its panel briefing, but then abandoned the claim at
oral argument:
JUDGE TATEL: Okay. So, then on [the Article III]
issue we’re looking at this de novo –
MR. DE PUE: Yes.

 5
JUDGE TATEL: – correct?
MR. DE PUE: Yes.
JUDGE TATEL: Okay. Great.
MR. DE PUE: And let’s proceed with that issue.
Bahlul v. United States, Case No. 11-1324, Argument
Transcript 29-30 (D.C. Cir., Oct. 22, 2014), available
at https://goo.gl/ENh1Lw. And when seeking en banc
rehearing from its subsequent loss before the panel,
respondent did not raise plain error or suggest that it
would be an impediment to en banc reconsideration.
Respondent argues that because this is a criminal
case and not a civil case, strict forfeiture rules should
apply no matter when respondent raised the issue. Br.
in Opp. 19. The incentives, respondent claims, are such
that there is no risk “of parties colluding and consenting
to a non-Article III forum for resolution of their dispute.”
Id. (quoting App. 62 (Millet, J.)). But that is simply not
true. Of the ten convictions rendered by the military
commission system, eight have been the product of plea
deals. Guantanamo By the Numbers, Miami Herald,
available at https://goo.gl/LrCGhK. And all of these
pleas have been colored by distorted incentives because
guilty or not-guilty, charged or uncharged, respondent
claims the discretion to hold any detainee pursuant to
Guantanamo’s preventative detention regime. See United
States v. Ghailani, 743 F. Supp. 2d 261, 288 (S.D.N.Y.
2010). This, in turn, has created a well-documented
practice of detainees asking to plead guilty, regardless of
the strength of the evidence against them, in exchange
for release. See Carol Rosenberg, Guantanamo Plea
Deal Unveils New Trial Strategy, Miami Herald (Feb. 27,
2012), archived at https://perma.cc/BW3M-SFXP.
Those kinds of distorted incentives are one of the
primary dangers this Court has warned about in its

 6
Article III cases. See, e.g., Stern, 564 U.S. at 493; CFTC
v. Schor, 478 U.S. 833, 850-51 (1986). The bureaucracy’s
assumption of the federal courts’ jurisdiction, and its
resultant consolidation of discretionary enforcement
powers with dispositive judicial powers, enables it to
coerce parties with take-it-or-leave-it deals designed to
evade judicial review.
2.  Respondent also argues that petitioner himself is
an unattractive vehicle for the weighty issues at stake.
Br. in Opp. at 23-24. To be sure, petitioner has declared
himself an enemy of the United States, he has done so
ostentatiously, and he has been held in Guantanamo
on that basis since 2002. But respondent’s argument
reflects a troubling trend that has become apparent
over the course of this appeal. As its arguments in
support of petitioner’s conspiracy conviction have met
greater judicial skepticism, respondent’s characterization
of petitioner’s relative culpability has become more
exaggerated and the trial record more unrecognizable.
Based on the uncontroverted record, petitioner never
participated in or had any foreknowledge of any terrorist
attack, not the least the September 11th attacks. Instead,
he was categorized as a “Low Value Detainee” and the
central charge against him was that he edited together
a propaganda video. He was charged only with inchoate
crimes. The jury instructions emphasized that “proof that
[any object offenses] actually occurred is not required.”
Trial Tr. 848. And when the USCMCR evaluated this case,
it entitled its analysis, “International Law and Inchoate
Liability.” App. 616. Since its inception, this has been
respondent’s test case for the trial of inchoate federal
crimes before military commissions.
Over the course of this appeal respondent has
increasingly suggested through innuendo that petitioner’s
culpability was far greater. But when finally pressed

 7
at oral argument on whether the government actually
had evidence to prove petitioner’s responsibility for any
completed crime, the former Acting-Solicitor General
admitted, “I don’t know.” Bahlul v. United States, Case
No. 11-1324, Argument Transcript 46-47 (D.C. Cir., Dec. 1,
2015), available at https://goo.gl/Fcphcf.
It also bears saying that this Court’s reporter is filled
with cases of unsympathetic litigants prevailing on
constitutional issues because that was the result the law
compelled. See, e.g., Snyder v. Phelps, 562 U.S. 443 (2011).
And nowhere has that been truer or more important than
in national security cases. See, e.g., Hamdan, 548 U.S.
at 635; Ex parte Milligan, 4 Wall. 2 (1866). This Court
decides cases based upon principles, not litigants. And
to accept respondent’s argument invites the creation of a
principle that will lie about “like a loaded weapon, ready
for the hand of any authority that can bring forward a
plausible claim of an urgent need.” Korematsu v. United
States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting)
3.   Respondent lastly argues that this Court’s review
is unnecessary because military commission prosecutors
have attempted workarounds to compensate for how
unsettled the law remains. Br. in Opp. 25. But that
argument supports, rather than detracts from, the main
reason this Court should take this case. High-profile
capital trials should not be forced to jerry-rig fundamental
jurisdictional questions.
Until this Court acts, the USCMCR’s discredited
opinion from 2011 remains controlling. Respondent says
in a footnote that this Court should not worry because
there is “no reason to doubt that military commission
judges will … treat the court of appeals’ decisions, rather
than the USCMCR’s, as the governing law.” Br. in Opp. 26
n.6. But that is precisely the point. There is no governing
decision from the court of appeals. And as noted in the

 8
petition, the military commissions have already reverted
to the USCMCR’s opinion in denying motions to dismiss
on Article III grounds. Pet. 16. If respondent is troubled
by that result, as its footnote suggests it is, then the
only responsible solution is for this Court to bring longawaited certainty to the law now.
II. THE RETROACTIVE PROSECUTION OF
CRIMES FIRST CODIFIED IN THE MILITARY
COMMISSIONS ACT RAISES TWO QUESTIONS
OF EXCEPTIONAL IMPORTANCE.
There are two questions embedded into the ex
post facto issues in this case, one statutory and the
other constitutional. Does the Military Commissions Act
overcome the presumption against retroactivity? If so,
does its retroactive expansion of military commission
jurisdiction violate the Ex Post Facto Clause?
Respondent’s primary arguments against this Court’s
answering those questions are: 1) that respondent is right
on the merits, 2) that the application of plain error by the
Circuit makes this case a poor vehicle, and 3) that the
questions themselves are of “diminishing importance”
because they only affect crimes committed before 2006.
Like the Article III question, the ex post facto issues
involve questions on which the D.C. Circuit ruled in
petitioner’s favor only to reinstate his conviction in
an en banc decision that generated five Circuit court
opinions. The merits are, therefore, at best debatable.
It is true that the application of the plain error rule was
determinative for the en banc majority’s resolution of the
constitutional question. App. 206 (Tatel, J., concurring).
But the Circuit divided 4-3 on the legal propriety of
deciding it on that basis. And with respect to the statutory
question, respondent itself stipulated that plain error
review was not appropriate. The Circuit accordingly
decided de novo whether the Military Commissions Act

 9
overcame the presumption against retroactivity in the
first place. The relevant legal questions have therefore
been comprehensively developed below and are ripe for
this Court’s consideration now.
Finally, respondent’s position on the relative
importance of the questions presented has again changed
with its litigation interests. In its petition to have the ex
post facto issues reheard en banc below, respondent based
its whole argument on their “exceptional importance,”
going so far as to title its argument, “The Scope of Military
Commission Jurisdiction over the
Offenses Charged in
This Case Is a Question of Exceptional Importance.”
Bahlul v. United States, Case No. 11-1324, Petition for
Rehearing En Banc (D.C. Cir., Mar. 5, 2013), available
at https://goo.gl/nXUxbk. That was true then, and it is
true now.
III. SEGREGATING THE FEDERAL CRIMINAL
JUSTICE SYSTEM IS SO UNPRECEDENTED
AND
BROADLY
SIGNIFICANT
THAT
THIS COURT SHOULD DECIDE ITS
CONSTITUTIONALITY NOW.
Respondent is correct that the equal protection issue
did not receive the breadth of consideration below that
this Court ordinarily looks for when granting certiorari.
The issue has, however, received more consideration
than respondent suggests. The USCMCR ruled on this
issue in respondent’s favor in 2011. United States v.
Hamdan, 801 F.Supp.2d 1247, 1322 (U.S.C.M.C.R. 2011).
Judge Kavanaugh ruled the same way but for different
reasons in 2014. App. 442 (Kavanaugh, J.).2 And there
2
 
 Respondent claims that Judge Kavanaugh determined that
Congress segregated the justice system to provide “for a fundamentally
fair proceeding without requiring that such aliens be admitted into the
United States.” Br. in Opp. 32. As the legislative record demonstrates,
this was not Congress’ rationale and, even if it were, the law says

 10
are numerous decisions from the military commission
system on this issue dating back to 2007. See, e.g., United
States v. Hamdan, Ruling on Motion to Dismiss for
Lack of Jurisdiction, AE084 (Dec. 19, 2007), archived at
https://perma.cc/WVA2-HDZ6.
On petitioner’s side, the argument for the
unconstitutionality of this segregation is straightforward.
All petitioner asks is that this Court reaffirm the
continuing vitality of Wong Wing v. United States, 163
U.S. 228, 238 (1896). Alternatively, this Court could find
that segregating the justice system violates the nation’s
commitment to equal justice under law. See Neal
Katyal, Equality in the War on Terror, 59 Stan. L. Rev.
1365, 1367 (2007).
The arguments on both sides, therefore, have been
well developed for over a decade and are ripe for
decision. The only thing the Court must decide is
whether the issue’s systemic importance to the military
commission system and the legal system more broadly
means that it should be decisively resolved now.
The issue’s systemic importance to the military
commission system is self-evident. Respondent has even
asked the military commissions to issue an advisory
opinion on this issue because “[t]he question of whether
the 2009 MCA violates equal protection is a foundational
legal question that should, in the interest of judicial
economy, be resolved early in the litigation.” United
States v. Nashiri, Government Motion for a Ruling that
the Military Commissions Act of 2009 Does Not Violate
Equal Protection, AE058 10 (Mar. 12, 2012), archived at
https://perma.cc/DTW7-XQVV.
nothing about where defendants are tried. Furthermore, Judge
Kavanaugh does not offer anything like this rationale either at the
page cited (App. 442) or anywhere else in his opinion.

 11
The issue’s systemic importance to the legal system
as a whole is also considerable. This Court has never
before condoned the segregation of the justice system
on any basis. Deferring review now will in practice
mean condoning it for the foreseeable future. It will put
the rights of non-citizens within the jurisdiction of the
United States, a class of individuals numbering more
than twenty-million, in legal jeopardy. And it will foster
profound doubts over the nation’s continued fidelity to
equal justice under law.
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

September 19, 2017

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