[00:00:00] Speaker 06:
Case number 11-1324, Ali Hamza Ahmed Suleiman al-Balo, petitioner, versus United States of America.

[00:00:08] Speaker 06:
Mr. Paradis for the petitioner, Mr. Gershigorn for the respondent.

[00:00:16] Speaker 05:
Mr. Paradis.

[00:00:34] Speaker 00:
Good morning, Chief Judge Garland, Your Honors, and may it please the Court.

[00:00:42] Speaker 00:
Under Ex Parte Kiran, an offense is, quote, not triable by military commission unless two conditions are met.

[00:00:51] Speaker 00:
First, it must be an offense against the international law governing armed conflict.

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And second, it must not be a crime that entailed a jury trial right at common law, a conspiracy

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The inchoate offense of agreeing to commit a tort or some other law violation fails both conditions.

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And for that reason, it falls outside the exception to Article 3 that the Supreme Court has recognized, the law of war military commissions.

[00:01:22] Speaker 01:
Is this really a conviction that we're reviewing of an ordinary NCOI conspiracy though?

[00:01:29] Speaker 01:
Because specific findings were made in the specification that the petitioner intended to commit the elements of the substantive offenses.

[00:01:43] Speaker 01:
There are also findings that he

[00:01:46] Speaker 01:
participated by creating the martyr wills of two of the participants.

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And there was also a finding that the actual offense was completed because there was a finding that he researched the effects, the economic effects of the offense.

[00:02:04] Speaker 01:
So this isn't your typical Encoi conspiracy, right?

[00:02:07] Speaker 00:
This is a typical Inquot conspiracy because the essence of what he was convicted of is the mere agreement to commit a crime regardless of whether or not it occurred.

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And that's what the members found and that's honestly what the government wanted this case to be about.

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This was a test case from the very beginning for the trial of Inquot

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ordinary vanilla conspiracy in military commissions.

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And to the extent the government had alternative theories of liability, which is what your honor, at least to me, seems to be suggesting, they abandoned those.

[00:02:48] Speaker 00:
They abandoned those on the record and did so sui sponte by striking out language that in the charge sheet, had it been found, would perhaps have gotten closer to something like you're describing.

[00:03:02] Speaker 01:
I don't see how you can maintain that this is just a general run of the mill conspiracy.

[00:03:07] Speaker 01:
The jury instructions here look nothing like the run of the mill conspiracy instructions.

[00:03:14] Speaker 01:
They include much more, in fact,

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They included language that the agreement intended every element of at least one of the offenses.

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And then the instructions go on to list all of the elements of the substantive offenses.

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And here we have a special verdict form, in effect, that showed that the panel members found

[00:03:40] Speaker 01:
that he conspired with respect to each of those offenses.

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So in other words, they found that he intended the elements of each of the substantive offenses.

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That's not what you'd normally have in a conspiracy instruction.

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That's not the way I read our normal conspiracy instructions.

[00:04:02] Speaker 00:
That's textbook conspiracy instructions, at least in the military.

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And there are two, I think, key elements of the instructions in this case that emphasize what an ordinary conspiracy this is.

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One is the judge's instruction to the members that finding that any of the intended underlying offenses occurred is not necessary.

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And second, that the members did not need to find that any of the elements, excuse me, any of the overt acts that the individual was personally proven to have committed were themselves criminal.

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This was an agreement to commit a crime.

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That's how the government pled it.

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That's how the judge instructed it.

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And that ultimately is what the members found.

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respect I think for this court to kind of go back after the fact and try and cobble together from snippets of the record inferences that may have allowed the government

[00:04:56] Speaker 00:
in another case in which it had tried another theory of liability or, frankly, charged Bahlul with a substantive crime tribal by military commission is certainly not how appellate review ordinarily takes place.

[00:05:10] Speaker 01:
Well, here's, I guess, what I'm driving at to eliminate any mystery here.

[00:05:19] Speaker 01:
You're asking us to review a conviction, not a statute.

[00:05:26] Speaker 01:
In this particular conviction here, there were specific findings that he directly participated with actual perpetrators of the September 11 attacks by preparing their martyr wills.

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And instructions were written and the specification said that he prepared the declarations in preparation for the acts of terrorism.

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perpetrated.

[00:05:56] Speaker 01:
So that's what the jury found.

[00:05:59] Speaker 01:
So even if they were told you don't necessarily have to find that the offense was committed, et cetera, et cetera, we know that they did find it here.

[00:06:12] Speaker 00:
We don't know that actually, Your Honor, in part because the specific overt act you're referring to, the preparation of the martyr wills, actually was done, the actual Arabic, and this is in the record, I can provide the court page citations later, was that he typed up

[00:06:29] Speaker 00:
the martyr wills based on videos after the September 11th attacks.

[00:06:33] Speaker 00:
There was no finding by the members that Beloul had any foreknowledge of any terrorist attack, that he directly participated in any terrorist attack, and in fact the record showed, and this is in our statement of facts, that

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He only even became aware of who the 9-11 attackers were after the 9-11 attacks, which he had no foreknowledge of.

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And so this is an inchoate conspiracy.

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He's being prosecuted here.

[00:07:00] Speaker 00:
I'm sorry.

[00:07:02] Speaker 00:
I don't mean to fight your question, but this is an inchoate conspiracy.

[00:07:06] Speaker 00:
The government has stood by that theory at least until this point in the appellate litigation.

[00:07:12] Speaker 00:
That's certainly what the CMCR found in its review, both of the record and the law of the case,

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that this is an inchoate conspiracy.

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This is conspiracy.

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This is the infamous crime of conspiracy.

[00:07:24] Speaker 07:
Isn't it strange to say that military commissions lack the authority under the war powers of Congress and the President

[00:07:33] Speaker 07:
to try people who are stopped before they murder innocent civilians?

[00:07:39] Speaker 07:
I mean, isn't it the case that congressional war powers and the president's power, commander-in-chief power, should suffice to protect us from something like 9-11 happening, as well as to punish people who were involved in perpetrating it after the fact?

[00:07:55] Speaker 00:
Absolutely.

[00:07:56] Speaker 00:
The only question is whether or not the war powers taken together or individually give Congress and the political branches the power to remove a conspiracy prosecution from the federal courts and then shunt it off to some special executive trial chamber.

[00:08:11] Speaker 07:
They're saying they only could, in that situation, such perpetrators planning but being stopped could only be tried in Article III court.

[00:08:19] Speaker 00:
If the only thing the government can prove or wants to try is an infamous crime like conspiracy, then yes, it does have to be in an Article III court.

[00:08:28] Speaker 00:
That doesn't mean they can't be captured and held for the duration of hostilities as most of the detainees in Guantanamo Bay are being.

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That doesn't mean they can't be targeted for a drone strike.

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That doesn't mean that they can't be captured on the battlefield and held in any other way that is consistent with our law.

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But when the government goes, and this comes straight out of Hamdan, when the government goes from the need to target and capture and detain and to the effort to punish, to say what the law is in a particular case, that is when the judicial power comes to the fore.

[00:09:02] Speaker 07:
And if an individual were charged and convicted of aiding and abetting the crimes of 9-11, there's no question in your mind that that person could be tried in a military commission consistent with the international laws of war.

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There's certainly no objection under international law to trying and aiding and abetting.

[00:09:20] Speaker 00:
And there's a theory of liability.

[00:09:22] Speaker 00:
It's not

[00:09:23] Speaker 07:
I mean, you say there's no question on the internet.

[00:09:26] Speaker 07:
Is there any question under any other?

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I mean, it's supported by the statutes.

[00:09:30] Speaker 07:
And if the evidence supported such a conviction, that could stand.

[00:09:35] Speaker 00:
Certainly.

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And proper aiding and abetting and aiding and abetting finding.

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But aiding and abetting, again, is a theory of liability.

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Conspiracy is a crime.

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It's a standalone crime.

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And I think that's the key difference.

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I just wanted to.

[00:09:47] Speaker 01:
So your answer would be if they had

[00:09:51] Speaker 01:
pursued the theory of liability of the Pinkerton theory of liability that they could do that.

[00:09:57] Speaker 00:
If they charged him with a substantive offense and said, Mr. Ali al-Balool, you are being tried for the 9-11 attacks.

[00:10:04] Speaker 00:
You are being tried for murdering civilians.

[00:10:06] Speaker 00:
You are being tried for perfidy.

[00:10:07] Speaker 00:
You are being tried for attacking civilian objects for terrorism.

[00:10:11] Speaker 00:
And you're being tried for these things because of your role in this broader plot as an aider and a better or under a sort of joint criminal enterprise Pinkerton theory of liability.

[00:10:21] Speaker 00:
That would be a completely different case, and none of these issues would arise.

[00:10:27] Speaker 08:
What if the government wants to charge all of them or try alternative theories?

[00:10:34] Speaker 08:
Is it your position that the substantive crimes, the Pinkerton conspiracy can go to the Military Commission, but you have to have a separate trial in an Article III court on the NCOE conspiracy?

[00:10:46] Speaker 08:
How long could that be how the system was intended to function?

[00:10:51] Speaker 00:
Well, the system is intended to function that way because that's what Article 3 says, that if you are trying a crime, the trial of all crimes is to be done in the courts of law.

[00:11:00] Speaker 08:
But no, the Pinkerton crime could be done in a military commission.

[00:11:05] Speaker 08:
The substantive crime, if that were also charged in a case, could be done there.

[00:11:09] Speaker 08:
The aid and abet can be done in a military commission.

[00:11:11] Speaker 00:
I'm sorry if I misspoke.

[00:11:13] Speaker 00:
Pinkerton, as I understood Judge Wilkins' question, I did not understand that to mean a separate crime of conspiracy.

[00:11:20] Speaker 00:
Simply, again, a theory of liability for proving the underlying law of war.

[00:11:24] Speaker 08:
I understand that, but you were saying crimes have to be in Article 3.

[00:11:27] Speaker 08:
But it's certainly a crime to commit a substantive offense via the mode of Pinkerton conspiracy.

[00:11:34] Speaker 08:
So I get that that's the liability for the crime.

[00:11:38] Speaker 08:
That's a crime, and that's not tried in Article III.

[00:11:40] Speaker 08:
It doesn't have to be tried in Article III courts.

[00:11:42] Speaker 00:
Well, this initially at least sounds like a formalistic argument, but it's what the attorney general used after the Lincoln conspirators.

[00:11:49] Speaker 00:
It's what the Supreme Court uses in Karen, is that there is a distinction for Article III purposes between crimes and defenses.

[00:11:58] Speaker 00:
Offenses like petty offenses, contempts, and law of war offenses are not, again in the phrase of the Attorney General's opinion, not classed crimes but offenses and therefore are outside of Article III's exclusive... What does the word define?

[00:12:14] Speaker 08:
What work does that word define do in the Define and Punish Clause?

[00:12:19] Speaker 08:
It doesn't mean at a minimum Congress can say...

[00:12:22] Speaker 08:
We're going to loop these conspiracy theories together.

[00:12:26] Speaker 08:
We're going to say that Inquate conspiracy can be tried just like Pinkerton conspiracy, just like other ancillary offenses in a military commission.

[00:12:33] Speaker 00:
Well, it means to codify or make more specific an offense that actually exists under international law.

[00:12:39] Speaker 08:
It does not mean... It means it makes it more specific.

[00:12:42] Speaker 00:
Well, for example, the crime of waging aggressive war is an offense under international law.

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And its elements have been a subject of debate really since Nuremberg.

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And if Congress were to say, this is how we recognize the offense of waging aggressive war, and all of the elements are consistent with the elements of that offense as it's understood.

[00:13:04] Speaker 08:
They can charge for conspiracy to commit aggressive war.

[00:13:07] Speaker 08:
You would agree with that, that that can be tried.

[00:13:10] Speaker 00:
But that's a very different kind of offense.

[00:13:11] Speaker 00:
That's actually a separate offense under international law, which is not.

[00:13:14] Speaker 08:
The conspiracy itself is the violation.

[00:13:17] Speaker 08:
And why couldn't Congress say, at least in the world of terrorism, conspiracy by itself is a form of waging aggressive war that we think can be tried before military commissions?

[00:13:27] Speaker 08:
Why doesn't the defined word give them that much leeway?

[00:13:30] Speaker 00:
Well, first of all, that's not what Congress did here.

[00:13:32] Speaker 00:
This is not an aggressive war prosecution.

[00:13:34] Speaker 00:
This is a conspiracy to commit various offenses, some of which are federal crimes, as this court found when this ex post facto issue was here.

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This court found that the charge against Balul was essentially an assimilation of 18 USC 2339.

[00:13:52] Speaker 00:
That's not what Congress was doing.

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But even with respect to that, conspiracy to wage aggressive war is not an incoherent offense.

[00:13:59] Speaker 00:
It is an offense where it's a way of holding individuals who planned an aggressive war that has taken place responsible.

[00:14:06] Speaker 00:
And just to your point again about the Define and Punish Clause, to the extent there's any ambiguity about what is required to do that, maybe Congress gets some leeway at the margins.

[00:14:15] Speaker 00:
Here, though, we have a crime.

[00:14:18] Speaker 00:
an infamous crime, conspiracy, that the government itself stipulates is not an offense under law of war.

[00:14:25] Speaker 00:
It's not an offense under international law.

[00:14:26] Speaker 00:
There are precedents from this court explicitly holding that.

[00:14:30] Speaker 00:
And to the extent Congress is not simply defining an offense to make it more specific and accessible, but making it or relabeling an infamous crime to turn it into an offense against law of war to escape

[00:14:45] Speaker 00:
the requirements of Article 3, that is unconstitutional, and that's certainly not supported by the defined point of the final punishment.

[00:14:53] Speaker 04:
When you said before that this is a plain vanilla ordinary conspiracy, it is a conspiracy with a particular object, correct?

[00:15:01] Speaker 04:
And the object is committing war crimes, to commit a war crime.

[00:15:06] Speaker 04:
Is this something that was tried in common law?

[00:15:09] Speaker 04:
That is, in the words of Northern Pipeline, was this tried at Westminster in 1789?

[00:15:16] Speaker 04:
Conspiracy to commit a war crime.

[00:15:18] Speaker 00:
A conspiracy to commit any offense is something that was retried.

[00:15:21] Speaker 04:
Well, we don't know that, right?

[00:15:23] Speaker 04:
Is there any example of a conspiracy to commit a war crime rather than with not just something that, something like murder, but an actual war crime?

[00:15:33] Speaker 04:
Was that ever tried?

[00:15:35] Speaker 00:
Well, we know that it was the conspiracy to commit any violation of the law is something that had to be tried at Westminster because of Callum versus Wilson.

[00:15:45] Speaker 00:
Callan versus Wilson is a case that the Supreme Court in Kirin cites for the scope of the jury trial requirement.

[00:15:51] Speaker 00:
And if you go to Callan versus Wilson, the Supreme Court unambiguously holds that conspiracy is subject to the judicial trial requirements of Article II.

[00:16:00] Speaker 04:
Callan, I think, was in a conspiracy to extort.

[00:16:02] Speaker 04:
Is that right?

[00:16:03] Speaker 00:
I believe it was a conspiracy to interfere with lawful business.

[00:16:06] Speaker 04:
Yes, that's not exactly the same thing as a conspiracy to commit a war crime.

[00:16:11] Speaker 04:
The fact that that kind of conspiracy could be tried at common law doesn't necessarily mean that something so close to something that

[00:16:20] Speaker 04:
could not be tried at common law, namely at war crime itself, could also not be tried at common law.

[00:16:27] Speaker 00:
Well, it does, actually.

[00:16:29] Speaker 00:
Because again, the analytical framework that governed Callan is the same analytical framework that the Supreme Court applied in Kieran.

[00:16:36] Speaker 00:
And what Callan holds is that even when the underlying offense, even when the object of the conspiracy does not entail a judicial trial,

[00:16:44] Speaker 00:
A conspiracy, the separate standalone infamous crime of agreeing to commit a crime, regardless of whether it ever takes place, that is an infamous crime that is subject to the jury trial requirement.

[00:16:57] Speaker 00:
And that is a crime.

[00:16:59] Speaker 00:
That is the distinction between a crime and an offense.

[00:17:01] Speaker 00:
So a conspiracy to commit a petty offense

[00:17:04] Speaker 00:
has to be tried, is subject to the jury trial requirements.

[00:17:08] Speaker 00:
A conspiracy to commit a contempt, if that could ever happen, would be subject to a jury trial requirement.

[00:17:13] Speaker 00:
And a conspiracy to commit an offense against the law of war is subject to the jury trial requirement because of the really particular and I'll part this unclear.

[00:17:23] Speaker 04:
The examples you give are all on the low side, conspiracies to commit things that are misdemeanors, essentially.

[00:17:29] Speaker 04:
This is something quite different.

[00:17:30] Speaker 04:
This is a conspiracy to commit something on the high side.

[00:17:33] Speaker 04:
None of those misdemeanors could be tried in a military tribunal under any possible theory, but the object here could be tried in a military tribunal.

[00:17:43] Speaker 04:
And I take it what you're saying is that the conspiracy would have to be, if you wanted to charge both, the conspiracy would have to go forward in

[00:17:51] Speaker 04:
an article three court and the object would have to go forward in a military tribunal.

[00:17:55] Speaker 04:
We'd have to split the indictment essentially, is that right?

[00:17:59] Speaker 00:
If the government wanted to do that, that would be a strategy that would be available to it.

[00:18:03] Speaker 00:
If it couldn't prove the substantive offense in a military commission and

[00:18:07] Speaker 00:
was left only proving the conspiracy?

[00:18:09] Speaker 00:
Yes, it has to take an individual to an Article 3 court, which is what they did in the Galani case, which is what they've done hundreds of times in terrorism cases since September 11th.

[00:18:19] Speaker 04:
They haven't split them hundreds of times.

[00:18:22] Speaker 04:
That's the question I was asking.

[00:18:23] Speaker 00:
There has been no split because, frankly, I think this case is still pending and the government wants to know whether or not it can take, again, the offense that is probably the most emblematic of the federal judicial power, conspiracy.

[00:18:37] Speaker 00:
Conspiracies are charged every single day, including conspiracies to commit terrorism or other very serious crimes

[00:18:43] Speaker 09:
But the last time we met, we were greatly interested in the fact that you had not raised these arguments before and we disposed of the case on plain error review.

[00:18:53] Speaker 09:
Is there some reason we shouldn't use that standard again this time around?

[00:18:58] Speaker 00:
Two answers, if I may, Your Honor.

[00:18:59] Speaker 00:
First is, even under plain error review, we prevail here.

[00:19:03] Speaker 00:
And that is first because conspiracy under Callan versus Wilson, it is plainly unconstitutional to remove a conspiracy prosecution from the federal courts to some special executive trial chamber.

[00:19:15] Speaker 00:
That's a holding from the Supreme Court.

[00:19:18] Speaker 00:
And with respect to the fourth factor that goes into plain error analysis, again, I struggle to imagine a more brazen

[00:19:26] Speaker 00:
challenge to the integrity of the justice system than the idea that the political branches may assume for themselves the power to remove a crime as emblematic as conspiracy is from the federal court.

[00:19:38] Speaker 09:
Well, in sure and wellness, the Supreme Court tells us that we have discretion to consider forfeited arguments.

[00:19:45] Speaker 09:
But those are both civil cases, aren't they?

[00:19:46] Speaker 09:
This is criminal context.

[00:19:50] Speaker 09:
Doesn't that provide a different outcome?

[00:19:52] Speaker 09:
Does it provide a different guide for us to use whether we have discretion or not?

[00:19:57] Speaker 00:
No, with respect to the Article 3 question, I think it cuts quite the other way because in civil cases, for a variety of reasons, can be adjudicated outside of the courts just in arbitration.

[00:20:07] Speaker 09:
Then how are we to exercise the discretion in sure and wellness?

[00:20:10] Speaker 09:
What's the standard we're to use?

[00:20:12] Speaker 00:
Well, the standard this court uses is it looks to see whether or not there's an Article III violation.

[00:20:17] Speaker 00:
And I would say in a criminal case that the standard of review is probably at its highest, both textually, the Constitution says the trial of all crimes is to be in the federal courts.

[00:20:27] Speaker 00:
It does not say the trial of all civil claims needs to be in the federal courts.

[00:20:31] Speaker 09:
OK, so even if we were to agree with you and looked at this under de novo review,

[00:20:35] Speaker 09:
How do you get around the statement in Kirin that we are only to overturn the work of the military commission?

[00:20:43] Speaker 09:
when we are clearly convinced that the work of the military commission was unconstitutional.

[00:20:49] Speaker 09:
In Belul I, we looked at this and we said it's not clear to us.

[00:20:55] Speaker 09:
You have the Civil War cases, you have the World War II cases, Kirin itself, Kolpa, and we have no instance where the Supreme Court has clearly said that the jurisdiction of the military commission

[00:21:09] Speaker 09:
is limited to international crimes.

[00:21:15] Speaker 09:
You have to show us that there's a clear history of not allowing these prosecutions to go forward.

[00:21:24] Speaker 09:
In light of vol 1, how can you make that case?

[00:21:27] Speaker 00:
We can make that case for two principal reasons.

[00:21:30] Speaker 00:
One is Balua I was dealing with the ex post facto clause, not Article III.

[00:21:34] Speaker 00:
And the considerations, frankly the law governing Article III and the ex post facto clause are quite different.

[00:21:40] Speaker 00:
But ex post facto is also a separation of powers issue, right?

[00:21:43] Speaker 00:
It certainly is a separation of powers issues, but this is not just a separation of powers question.

[00:21:48] Speaker 00:
It's a question about the duty of the courts to protect the federal judicial power and to not allow it to be encroached upon, which is... Isn't that what ex post facto is to prevent Congress from encroaching on the power of the court?

[00:22:01] Speaker 04:
That's the nature of the separation of powers argument in ex post facto cases and the Supreme Court's ex post facto cases.

[00:22:07] Speaker 00:
That's true, but I think the Article 3 issue raises it to quite a different level where you have the political branches essentially attempting to push the district courts to the side for only the trial.

[00:22:20] Speaker 00:
And I think that's one of the most peculiar things about this military commission system.

[00:22:23] Speaker 00:
This is not a military commission like in Kirin, where the standard of review being applied is more generous because it's habeas corpus, right?

[00:22:32] Speaker 00:
Ex parte Kirin is a habeas case, as are most of the others.

[00:22:36] Speaker 00:
This is a case where

[00:22:37] Speaker 00:
essentially the political branches have replaced just the federal trial courts with executive trial chambers and then put it under the direct appellate review of this court.

[00:22:49] Speaker 08:
In this respect, it's much more like a bankruptcy court than it is... Unlike civil cases where maybe there's concern that party consent will mean the courts will never have an opportunity to address an incursion by

[00:23:05] Speaker 08:
the legislative branch on core judicial power.

[00:23:08] Speaker 08:
We don't have that concern in criminal cases, do we?

[00:23:11] Speaker 08:
Don't criminal defendants have every incentive to raise claims in the first place?

[00:23:19] Speaker 08:
We don't worry too much about them consenting across the board.

[00:23:22] Speaker 08:
And even if they don't, we always have plain error review.

[00:23:26] Speaker 08:
So the Congress just can't keep these claims, these constitutional questions away from us.

[00:23:32] Speaker 00:
Well, again, we certainly think we prevail under plain error review.

[00:23:37] Speaker 00:
I don't think there can be a reasonable question that Callan versus Wilson and ex parte Kieran taken together dispositively demonstrate that where the government concedes it's not an offense under the law of war,

[00:23:48] Speaker 03:
and where the crime itself is the Supreme Court has... That depends on how we read Kieran, because Article 3, which you've cited many times, does not have an exception for military commission.

[00:23:59] Speaker 03:
So under the plain language of Article 3, you have a great case.

[00:24:02] Speaker 03:
But we have Kieran, which creates an atextual exception to Article 3.

[00:24:06] Speaker 03:
And the question then is how to interpret that exception sensibly.

[00:24:10] Speaker 03:
And Mike

[00:24:12] Speaker 03:
concern has been why draw the line at international laws, the atextual exception, rather than U.S.

[00:24:20] Speaker 03:
historical practice.

[00:24:21] Speaker 00:
Well, two answers to that, because I would like to address US historical practice.

[00:24:25] Speaker 00:
But the first is, and this comes right from page 29 of Keran, where they talk about, and then a broader discussion, I think beginning on about page 35, where the court talks about, again, this offense-crime distinction.

[00:24:39] Speaker 00:
That law of war offenses, to the extent there is a discrete body of offenses that violate the law of war,

[00:24:46] Speaker 00:
let's just assume for the moment under international law, that those offenses just are not crimes.

[00:24:51] Speaker 00:
That's why there is this atextual exception to Article 3, because Article 3 speaks to crimes and offenses like petty offenses are outside of that exception.

[00:25:01] Speaker 07:
And spying and aiding the enemy also outside?

[00:25:05] Speaker 00:
Yes, the Supreme Court squarely holds in Cairn that spying and aiding the enemy are offenses, not crimes.

[00:25:11] Speaker 03:
They're not international law offenses.

[00:25:13] Speaker 00:
Well, the Supreme Court certainly thought so.

[00:25:16] Speaker 00:
I understand that the scholars... No, they're not.

[00:25:19] Speaker 00:
We may think... I've never seen a court case saying that they're not subsequent to ex parte Cairn.

[00:25:25] Speaker 00:
And so to the extent that the law that governs this

[00:25:29] Speaker 00:
that the law that governs this case is ex parte curan.

[00:25:34] Speaker 00:
The Supreme Court is infallible because it's final, not because it always gets the law right.

[00:25:39] Speaker 00:
And here we have a situation where the Supreme Court holds spying to be a violation of international law.

[00:25:44] Speaker 00:
And also, I think, to the extent spying and aiding the enemy stand apart as exceptional in any way, they've been exceptional from the very beginning of the Republic.

[00:25:56] Speaker 07:
Well, that's the government's argument about conspiracy as well.

[00:25:59] Speaker 07:
And the question is if the Military Commissions Act and the Uniform Code of Military Justice, they refer to offenses that by statute or the law of wars can be tried in military commissions.

[00:26:11] Speaker 07:
And I assume that you understand that by statute encompass what?

[00:26:17] Speaker 07:
I mean, does everything have to also be a violation of the law of war, as you've just characterized?

[00:26:21] Speaker 07:
I thought that spying and aiding the enemy were the by statute ones.

[00:26:24] Speaker 07:
But you're saying, no, no, there are also violations of the law of war.

[00:26:26] Speaker 07:
So what's that language about?

[00:26:27] Speaker 00:
They may be the class of by statute.

[00:26:29] Speaker 00:
That may be the American common law of war the government talks about.

[00:26:32] Speaker 00:
But that doesn't necessarily, I'm sorry.

[00:26:35] Speaker 07:
But once there's an American law of war, then the government's saying, if there's a category there, why not this?

[00:26:41] Speaker 00:
Well, why not this?

[00:26:42] Speaker 00:
I think because the government has no good tradition to demonstrate, certainly not the tradition it has with spying and aiding the enemy, to get around the plain language of ex parte

[00:26:57] Speaker 00:
In the Lincoln case, they weren't charged with conspiracy.

[00:27:01] Speaker 00:
Conspiracy at most was the broad theory of liability, because if you go to the specifications against each individual, they're charged with aiding and abetting the actual assassination of the president, along with other substantive offenses, including attempts.

[00:27:15] Speaker 00:
And we know for a fact

[00:27:17] Speaker 00:
for a fact that Lincoln was not a conspiracy case, because three years later, John Surratt was tried for murder and for attacking the president with the same conspiracy language in his charge sheet, even though the federal conspiracy statute was enacted after he was charged.

[00:27:35] Speaker 00:
And so it was a common charging practice back then to, say, conspire, aid, and abet.

[00:27:40] Speaker 00:
And for the government to look back to these

[00:27:42] Speaker 00:
Civil War era precedents where conspiracy was a misdemeanor.

[00:27:46] Speaker 00:
It was a misdemeanor that carried two-year sentence.

[00:27:49] Speaker 00:
And that was true up through and including ex parte Karen.

[00:27:52] Speaker 00:
The conspiracy law doesn't really blossom until the late 1940s anyway.

[00:27:57] Speaker 00:
And so all of these precedents the government's looking back on where it's saying, oh, conspiracy, conspire, conspiracy, they're not talking about the offense of conspiracy as it's being used in this case.

[00:28:08] Speaker 08:
Can I ask?

[00:28:09] Speaker 08:
The thing that I find difficult here is, first of all, when Article 1 was written,

[00:28:22] Speaker 08:
Where would the founders have thought that Congress would look to determine what the law of nations is?

[00:28:28] Speaker 08:
How much would be externally looking?

[00:28:30] Speaker 08:
How much would be internally looking?

[00:28:31] Speaker 08:
How much would just be their own judgment?

[00:28:35] Speaker 08:
And in particular, in a case like this where you have

[00:28:39] Speaker 08:
war crimes as the object.

[00:28:41] Speaker 08:
And the question really is how big an orbit around war crimes Congress has the authority to define and punish or include in its other war powers.

[00:28:53] Speaker 08:
I assume there were not tribunals for human rights violations back then like there are now.

[00:29:00] Speaker 08:
There probably weren't a bunch of law review articles and international law scholars writing.

[00:29:05] Speaker 08:
Where was Congress supposed to look and how do we know it wasn't to look internally and just to exercise its own judgment in defining that orbit around indisputable international law offenses like the Commission of War Crimes?

[00:29:18] Speaker 00:
Well, again, define does not mean creating an orbit.

[00:29:22] Speaker 00:
It doesn't mean create a penumbra around defenses against the law of nations.

[00:29:25] Speaker 00:
It actually means to narrow them down, to make sure that they are, A, clear enough.

[00:29:30] Speaker 08:
What do you mean narrow?

[00:29:31] Speaker 08:
So even if something was a violation of international law, all Congress can only go narrow, and I can't simply say, how is that committed?

[00:29:39] Speaker 08:
How is it violated?

[00:29:41] Speaker 08:
Who will be responsible for that war crime?

[00:29:44] Speaker 00:
Make more specific.

[00:29:46] Speaker 00:
That's what defined means, to make something more specific.

[00:29:48] Speaker 08:
That doesn't mean narrower.

[00:29:49] Speaker 08:
That may say, look, committing war crimes is horrible, and here's the different stages and manifestations of war crime commission that we intend to punish, including the planning of it, at least with an overt act and the level of intent that was at issue here.

[00:30:07] Speaker 00:
But again, the overt act requirement, A, is not criminal here, and B, is irrelevant to the question of what the actual crime Congress is identifying is.

[00:30:15] Speaker 00:
And what would the framers have done?

[00:30:17] Speaker 00:
They would have looked to state practice.

[00:30:18] Speaker 00:
And what does state practice tell us here?

[00:30:20] Speaker 00:
State practice tells us that the United States does not think conspiracy is an offense against the law of war.

[00:30:26] Speaker 00:
It's represented that here in court.

[00:30:27] Speaker 08:
When you say state practice, you mean?

[00:30:29] Speaker 08:
State of the United States or states as a nation?

[00:30:32] Speaker 00:
Well, everybody.

[00:30:33] Speaker 00:
Every part of the international community, the United States and abroad.

[00:30:37] Speaker 00:
And we know as a matter of state practice that conspiracy is not one of the offenses that Congress may codify in either pursuant to the Define and Punish Clause because every military commission precedent, every international criminal precedent, up through and including the tribunal that tried Saddam Hussein

[00:30:56] Speaker 08:
But I'm really trying to talk about, again, what was the thought about?

[00:31:00] Speaker 08:
We have to figure out where the Constitution, how much leash they give Congress, and where they tell Congress to start its analysis from in deciding what is an offense against the law of nations.

[00:31:12] Speaker 06:
Doesn't the Supreme Court in our Jonah offer some answer to Judge Millett's question?

[00:31:19] Speaker 00:
That's correct.

[00:31:20] Speaker 00:
The court says it depends on the thing done, not a declaration to that effect by Congress.

[00:31:25] Speaker 06:
The Define and Punish Clause in part was established to respond to our international obligations.

[00:31:33] Speaker 00:
That's exactly right.

[00:31:34] Speaker 00:
It was an effort to essentially ensure that the United States conformed with international law, not that it struck out on its own and created its own separate American international law.

[00:31:43] Speaker 00:
And I would say not just our Jonah.

[00:31:45] Speaker 00:
I would actually point this court to the case of the antelope, because I think that really does get squarely to your honor's concern, is there is a situation where the United States is attempting, along with Great Britain and other nations, to abolish the international slave trade.

[00:31:59] Speaker 00:
And they essentially make slave trading a basis on which you can get prize in 1820.

[00:32:06] Speaker 00:
And when that goes to the Supreme Court, Supreme Court says, no, that's beyond the power of Congress, because as reprehensible and immoral as the international slave trade may be, and as compelling as Congress's interests in abolishing the slave trade may be, they cannot take something that is not an offense under international law, that's something that's not piracy.

[00:32:29] Speaker 00:
make it such simply by calling it such.

[00:32:32] Speaker 08:
Didn't Arjuna actually support the notion that Congress has a little bit bigger orbit?

[00:32:37] Speaker 08:
Because there, it was all about counterfeiting currency, and they said, look, we need to sort of have a practical understanding of how this is to be enforced, and we are going to take it out to include securities.

[00:32:51] Speaker 08:
It's a good stretch to take securities and war crimes and compare little apples and oranges.

[00:32:56] Speaker 08:
But the concept of Congress having leash

[00:32:58] Speaker 08:
to draw a wider circle that still has at its core that international violation but includes practical enforcement of it.

[00:33:08] Speaker 00:
Sorry, I'm sorry.

[00:33:10] Speaker 00:
No, but here the precise problem is that there is no core of an international violation at the bottom of this offense.

[00:33:16] Speaker 00:
This offense is the agreement to commit a crime.

[00:33:19] Speaker 00:
That is an infamous crime that has been recognized.

[00:33:21] Speaker 08:
But we don't have to decide that.

[00:33:22] Speaker 08:
We only have to decide whether the agreement to commit a war crime

[00:33:27] Speaker 08:
and to take at least one overt act and to have intention, whether that's within Congress's orbit.

[00:33:35] Speaker 08:
We don't have to decide whether any conspiracy or any other form of conspiracy would be.

[00:33:42] Speaker 00:
Candidly, Your Honor, this is not just the nose under the tent.

[00:33:46] Speaker 00:
This is the camel entering the tent.

[00:33:48] Speaker 00:
This is Congress saying we can try conspiracies to commit any offense under the law of nations in a special executive trial chamber.

[00:33:56] Speaker 00:
And when you actually begin to think about the breadth of what offenses against the law of nations actually encompasses today, you are creating a precedent where

[00:34:05] Speaker 00:
Almost any conspiracy, if the government can relate it in some fashion to national security or the war powers, would then be triable in a military commission.

[00:34:14] Speaker 08:
At the same time, why has Congress held hostage to someone somewhere decided that conspiracy to commit genocide, well that's okay, that's different, and conspiracy to commit aggressive war, well that's okay, we'll let that one in the door.

[00:34:28] Speaker 08:
Joint criminal enterprise, we'll let that in the door.

[00:34:30] Speaker 08:
Pinkerton, okay, we'll let that in the door.

[00:34:32] Speaker 08:
But golly gee, if you call it inchoate conspiracy.

[00:34:35] Speaker 00:
Well, it's not just calling it inchoate conspiracy.

[00:34:37] Speaker 00:
It's what you're punishing.

[00:34:38] Speaker 00:
Here you're punishing the fact that Balul agreed with others to commit a crime, regardless of whether or not.

[00:34:43] Speaker 08:
So you're punishing agreement.

[00:34:44] Speaker 08:
Yes, it's tied more.

[00:34:45] Speaker 08:
It's a form of liability.

[00:34:47] Speaker 08:
But the agreement is essential elements in those other forms of conspiracy as well.

[00:34:53] Speaker 00:
But they are how you prove what is, in fact, an offense against the law of nations.

[00:35:00] Speaker 00:
And also, for example, again, conspiracy to commit genocide and aggressive war are not in co-ed offenses the same way that conspiracy to commit war crimes is.

[00:35:09] Speaker 08:
And to the extent... Can you clarify that for me?

[00:35:12] Speaker 08:
So are they not freestanding crimes, independent crimes apart from the acts of genocide?

[00:35:19] Speaker 00:
That's correct.

[00:35:19] Speaker 00:
There is sort of a theory of liability under international law for when a genocide and or an aggressive war occurs.

[00:35:27] Speaker 00:
There's been no example of someone being prosecuted for a conspiracy to commit genocide in the absence of a genocide that they are being specifically held responsible for.

[00:35:37] Speaker 08:
So you're saying that it wouldn't extend there?

[00:35:40] Speaker 08:
I mean, my understanding is there are no losses.

[00:35:42] Speaker 08:
You can have this conspiracy.

[00:35:43] Speaker 00:
There's certainly no precedent for it.

[00:35:45] Speaker 00:
And the International Criminal Court actually does away with the conspiracy.

[00:35:48] Speaker 00:
The statute of the International Criminal Court did away with the conspiracy to commit both genocide and aggressive war language.

[00:35:54] Speaker 08:
Exactly, Congress's working room?

[00:35:55] Speaker 08:
I mean, shouldn't this be exactly the area they get to opt in?

[00:35:58] Speaker 00:
Sure.

[00:35:58] Speaker 00:
And if Congress wanted conspiracy to commit aggression or conspiracy to commit genocide to be within the jurisdiction of a war crimes tribunal it created,

[00:36:07] Speaker 00:
That is maybe perhaps part of its discretion.

[00:36:10] Speaker 08:
They call this free-standing conspiracy and they call it conspiracy to commit terrorist aggression?

[00:36:16] Speaker 08:
That would be okay.

[00:36:17] Speaker 00:
No, I think that sounds much more like conspiracy to commit a war crime than conspiracy to... You said conspiracy to commit aggression.

[00:36:24] Speaker 08:
I'm just putting the adjective terrorist in front of me.

[00:36:26] Speaker 07:
Right, but aggression has a very specific meaning under international law that does not apply to not... These circumstances, wouldn't this be, I mean, weren't the events of 9-11 aggressive war?

[00:36:34] Speaker 07:
So couldn't they have been charged with, couldn't Abul have been charged with conspiracy to commit aggressive war?

[00:36:40] Speaker 00:
No, aggression is a crime that applies to state actors only under international law.

[00:36:47] Speaker 08:
But why can't Congress say in this modern, why can't it be the lead or at least look out there and survey ambiguity in the status of democracy?

[00:36:58] Speaker 08:
Why can't they lead and say the time has come to go to non-state actors?

[00:37:02] Speaker 00:
two principal reasons for that.

[00:37:04] Speaker 00:
First of all, if we're only talking about the Define and Punish Clause, then they would be in the business of making not defining an offense under the law of nations.

[00:37:11] Speaker 00:
And that is what every precedent on the Define and Punish Clause says Congress can't do.

[00:37:16] Speaker 00:
That does not mean, however, that Congress cannot create such an offense using its other enumerated powers.

[00:37:21] Speaker 00:
The only question in this case is not really a question of congressional power in this

[00:37:27] Speaker 00:
It's a question of the exclusive judicial power of the Article III courts.

[00:37:31] Speaker 00:
Could Congress take any offense?

[00:37:34] Speaker 00:
That is how the government itself has framed this case.

[00:37:36] Speaker 00:
Can Congress take a purely domestic law offense passed under any one of Congress's enumerated powers and transfer it into a special executive trial chamber?

[00:37:48] Speaker 00:
And when viewed that way, the encroachment on Article III is not just slight, as Chief Justice Roberts said in Stern.

[00:37:56] Speaker 00:
It is utterly brazen.

[00:37:57] Speaker 00:
It is going after probably the defining offense that people associate with the federal judicial power, which is conspiracy.

[00:38:04] Speaker 00:
And that's certainly been true since the 1940s.

[00:38:06] Speaker 00:
And when the government itself concedes that it cannot satisfy the standard that Kieran sets out on page 29, and when the government itself concedes that the United States does not recognize conspiracy to commit war crimes as an offense under international law, and when that concession is supported by every relevant precedent,

[00:38:25] Speaker 00:
at least since 1945, and we would say going much further back than that.

[00:38:30] Speaker 04:
All right, Mr. Paradis, you're out of time.

[00:38:32] Speaker 04:
Following our usual tradition, we won't care, and we'll let you have a rebuttal anyway.

[00:38:36] Speaker 04:
Thank you, Your Honor.

[00:38:37] Speaker 04:
If you could sit down and let the government now speak, that would be great.

[00:38:39] Speaker 04:
Thank you, Your Honor.

[00:38:48] Speaker ?:
Sorry, Your Honor.

[00:38:50] Speaker 02:
Chief Judge Garland, and may it please the court.

[00:38:52] Speaker 02:
In the Military Commissions Act, Congress responded to the call from the Supreme Court and made clear its judgment, shared with the executive branch, that an alien, unlawful enemy combatant may be tried in a military commission for conspiracy to violate the laws of war.

[00:39:08] Speaker 02:
Nothing in the Constitution precludes that shared judgment.

[00:39:12] Speaker 02:
Congress did not fabricate conspiracy from whole cloth, and that's true in at least two important senses.

[00:39:17] Speaker 02:
First, Congress's judgment is consistent with the experience of our wars and the acts and orders of our wartime tribunals, which in turn reflect a long history of trying in a military commission conspiracy to violate the laws of war.

[00:39:32] Speaker 02:
That includes the highest profile military commissions our nation has seen, including the trial of the Lincoln conspirators.

[00:39:38] Speaker 09:
But the problem there is you have the martial law, right?

[00:39:42] Speaker 09:
We don't know what it is.

[00:39:43] Speaker 09:
We don't know what type of law of war

[00:39:45] Speaker 09:
military commission this is.

[00:39:47] Speaker 09:
And if it's under martial law, your analysis fails.

[00:39:50] Speaker 09:
The Lincoln cases are not as clear as the government keeps maintaining because of the martial law component.

[00:39:57] Speaker 02:
So, Your Honor, it's not just the Lincoln conspiracy.

[00:39:59] Speaker 02:
It's Lincoln, it is

[00:40:00] Speaker 02:
Colonel Grenfell, and it is Henry Wirtz.

[00:40:03] Speaker 02:
It's also the conspiracy charges at issue in Kirin and in Kolbaugh.

[00:40:07] Speaker 09:
And with respect, Your Honor, if I could just, it's not just... There's no question that in Kirin and Kolbaugh, the Military Commission thought it had that authority, but those haven't been subject to judicial review on that question, have they?

[00:40:21] Speaker 02:
That's right, Your Honor.

[00:40:21] Speaker 02:
But I think in both, for example, in Wirtz and in Grenfell, the charges themselves specified that what was at issue was a conspiracy to violate the law of war.

[00:40:32] Speaker 02:
And that's indicated in the charge itself.

[00:40:34] Speaker 02:
And then with respect to the Lincoln Conspiracy, that is the thrust of the attorney general analysis, was that this could be tried in a military commission.

[00:40:43] Speaker 10:
Not because the attorney general thought it violated the international law of war.

[00:40:48] Speaker 02:
No, Your Honor.

[00:40:48] Speaker 02:
I don't think it was because of that.

[00:40:49] Speaker 10:
But I think that that.

[00:40:51] Speaker 10:
And if that's not the limitation on military commissions, what is the limitation?

[00:40:58] Speaker 10:
In other words, if military commissions are not limited to trying offenses that violate the international law of war, what limit is there in terms of what crimes can be tried or offenses in the commission?

[00:41:13] Speaker 02:
So, Your Honor, I think that we would say, at the very least, at a minimum, it has to be trial of an enemy belligerent, and the crime has to be in the context of and associated with hostilities.

[00:41:25] Speaker 10:
OK.

[00:41:25] Speaker 10:
But let's assume you have such a person.

[00:41:30] Speaker 10:
Can that person be charged with a crime that is not a violation of international law?

[00:41:36] Speaker 10:
And if so, are there any limitations at all in the government's view about this?

[00:41:42] Speaker 02:
So, Your Honor, the answer to your first question about the international law of war is yes.

[00:41:46] Speaker 02:
We do not believe that is the proper limit.

[00:41:48] Speaker 10:
You do what?

[00:41:49] Speaker 10:
I'm sorry, you do not or you do?

[00:41:50] Speaker 02:
We do not believe the violation of the international law of war.

[00:41:53] Speaker 10:
That's my question.

[00:41:53] Speaker 10:
What is the limit then?

[00:41:56] Speaker 10:
So, Your Honor, I don't think... Other than the fact that there has to be an armed conflict and an enemy command.

[00:42:01] Speaker 02:
So I would suggest to the court that this case does not approach whatever limits there are for at least the two reasons.

[00:42:07] Speaker 02:
First, it's firmly grounded in history.

[00:42:09] Speaker 02:
And the second reason is that it's firmly centered in international law.

[00:42:12] Speaker 10:
What is firmly grounded in history?

[00:42:15] Speaker 02:
I'm sorry?

[00:42:16] Speaker 10:
What is firmly grounded in history?

[00:42:18] Speaker 02:
The trial of conspiracy to violate the laws of war in American history, domestic history.

[00:42:23] Speaker 02:
in American domestic law of war.

[00:42:25] Speaker 02:
That's right, Your Honor.

[00:42:26] Speaker 02:
And then second, it's firmly tethered in international law to pick up on the point that Judge Millett was making.

[00:42:31] Speaker 02:
There is no dispute that many of the objects of petitioners' conspiracy are themselves violations of international law.

[00:42:37] Speaker 02:
And there's no dispute that joint criminal enterprise and aiding and abetting are available modes of liability to help facilitate those prosecutions.

[00:42:45] Speaker 02:
But, Mr. Gershonborn?

[00:42:45] Speaker 10:
The government, Blue argues, and the anarchist brief supports this.

[00:42:54] Speaker 10:
You don't really respond to this in your brief.

[00:42:57] Speaker 10:
The anarchist brief, this is the one of international scholars, they say that international law has rejected conspiracy as a stand-alone offense.

[00:43:05] Speaker 10:
except for genocide and wars and aggression.

[00:43:07] Speaker 10:
And they list, they go through five or six decisions and treaties, which is what Karen says we should look to.

[00:43:16] Speaker 10:
They start with Nuremberg, they go to the 1945 Principles of International Law founded in Nuremberg.

[00:43:26] Speaker 10:
which expressly recognize only conspiracy to wage aggressive war.

[00:43:33] Speaker 10:
The Geneva Convention doesn't include conspiracy to commit war crimes.

[00:43:38] Speaker 10:
The two charters creating Yugoslavia, I'm just going through the list in their brief.

[00:43:42] Speaker 10:
Yugoslavian Rwanda don't, conspiracy only for genocide, and the Rome Statute.

[00:43:48] Speaker 10:
So their point is that while Congress definitely has

[00:43:53] Speaker 10:
authority or discretion under the Define and Punish Clause to interpret the filling ambiguities, what it can't do is define as an offense trial before a commission an offense that international law has expressly rejected.

[00:44:11] Speaker 10:
That's their point.

[00:44:12] Speaker 02:
So Your Honor, what's the government's answer to that?

[00:44:15] Speaker 02:
So the answer to that is severalfold, Your Honor.

[00:44:18] Speaker 02:
First, we reject the premise.

[00:44:20] Speaker 02:
I agree with that.

[00:44:20] Speaker 10:
We'll come back to the premise.

[00:44:22] Speaker 02:
But the second one is we don't agree that there is a consensus in international law that conspiracy cannot be tried.

[00:44:28] Speaker 10:
There's a difference between... You disagree with their conclusion from all of these various treaties.

[00:44:31] Speaker 02:
Correct, Your Honor.

[00:44:32] Speaker 10:
We think that... So what's the best evidence you have?

[00:44:35] Speaker 10:
The government hasn't... Just tell me what it is.

[00:44:37] Speaker 10:
What is the best evidence you have?

[00:44:39] Speaker 10:
for the proposition that an international tribunal or an international commission or a group of them has recognized as a violation of international law conspiracy to commit war crimes.

[00:44:52] Speaker 02:
Your Honor, our contention is not that – there are examples in our brief, first of all, of both the French and the Dutch examples where that was tried.

[00:45:00] Speaker 02:
Second, the point is not that – our point is that although there isn't yet a consensus that international law permits that, there is no – we do not agree that there's – that that lack of consensus is a suggestion that international law forecloses it.

[00:45:15] Speaker 02:
Those are two very different propositions.

[00:45:17] Speaker 10:
The analysis in the brief is that each of these treaties and agencies actually considered the possibility of conspiracy to commit war crimes as a violation of international law and rejected it.

[00:45:31] Speaker 10:
And in fact, the only one they've permitted in the end is conspiracy to commit genocide.

[00:45:37] Speaker 10:
So their argument is that this decision is resolved internationally.

[00:45:41] Speaker 10:
It's done.

[00:45:42] Speaker 02:
So, Your Honor, I don't think that that's correct and I don't think that certainly that's not part of our concession.

[00:45:48] Speaker 02:
Because there's a difference in international law between a consensus that something is impermissible and so I don't think the absence of something, Your Honor, if I may, is evidence

[00:45:59] Speaker 02:
that there isn't yet the consensus.

[00:46:01] Speaker 02:
A lot of treaties, this happened, in fact, in Nuremberg.

[00:46:03] Speaker 02:
What happened at the London Charter Council was that the parties got together, and because there was no consensus on conspiracy, they omitted it.

[00:46:11] Speaker 02:
That is not the same thing.

[00:46:12] Speaker 10:
An effort to get consensus in international law is not the same thing as saying that international law... But would you agree then, instead of... Would you agree that if there was clear evidence that international law had rejected it,

[00:46:26] Speaker 10:
And again, I understand you quibble with the premise.

[00:46:29] Speaker 10:
We can come back to that.

[00:46:30] Speaker 10:
But would you agree that if there is evidence that international law considered and rejected an offense as a violation of international law, that Congress then could not define it itself?

[00:46:43] Speaker 02:
So Your Honor, I just want to be precise.

[00:46:45] Speaker 02:
I think considered and rejected, the answer to the question is no, Congress could still do it.

[00:46:49] Speaker 02:
If you're saying that international law actually forecloses it, then I think under the Define and Punish Clause, Congress would face a much deeper hurdle.

[00:46:57] Speaker 02:
Of course, here we don't have just Define and Punish.

[00:47:00] Speaker 02:
We have all of the additional war powers, which are not so limited.

[00:47:03] Speaker 02:
And so I don't think, Your Honor, that the international law of war is the standard.

[00:47:08] Speaker 02:
And I don't think that that's what the Supreme Court has thought.

[00:47:10] Speaker 03:
Is history a limit in looking for a limit?

[00:47:13] Speaker 03:
Imagine Congress a few years from now makes cyber attacks by al-Qaeda, a war crime punishable by military or triable by military commission.

[00:47:24] Speaker 03:
So something like that, impermissible or not?

[00:47:26] Speaker 02:
So Your Honor, I don't want to say that that is impermissible.

[00:47:29] Speaker 02:
Let me make two points here.

[00:47:31] Speaker 02:
The first is that I don't want to say that's impermissible.

[00:47:34] Speaker 02:
Let me explain why.

[00:47:35] Speaker 02:
I think this case is easier precisely because it has a historical grounding and because it is tethered to international law.

[00:47:43] Speaker 02:
And that's what makes this and, if I may, the third is because Congress and the President have agreed.

[00:47:48] Speaker 02:
And so we're in the Youngstown Category 1 framework for the first time in our nation's history.

[00:47:53] Speaker 02:
The question about whether cyber attacks could be used is something that... So it's boom at the end.

[00:47:57] Speaker 02:
I mean, that doesn't answer the question if there's an independent constitutional... Absolutely, Your Honor, and we agree that it's this Court's job ultimately to decide that question.

[00:48:05] Speaker 02:
But I would point out that what Hamdan thought, and what the justices thought of Hamdan, was that Congress's views on this question were quite relevant.

[00:48:12] Speaker 02:
to what the court was thinking.

[00:48:13] Speaker 02:
And I think that's further evidence going to Judge Tatel's point that what the court was asking was not really the question of what does international law think because surely the court didn't need Congress to decide that.

[00:48:24] Speaker 02:
What the court thought was that Congress could weigh in intelligently on the question about whether conspiracy to commit

[00:48:30] Speaker 02:
a war crime was itself something that could be tried.

[00:48:34] Speaker 02:
Now going to your cyber attack point, I think that's exactly why this court should be very hesitant to reach out and decide the precise limits in a case that doesn't present them.

[00:48:43] Speaker 07:
That is an interesting point for the government to make.

[00:48:46] Speaker 07:
I'm really puzzled why we are here with this very difficult, very important, very cutting edge question.

[00:48:56] Speaker 07:
when it appears from the government's theory that the government could have charged this terrorist with aiding and abetting, or with joint criminal enterprise.

[00:49:07] Speaker 07:
And I'm just baffled by that, and I wonder if you have an answer.

[00:49:10] Speaker 02:
Your Honor, there was a discussion in the military commission proceedings, a proceeding with an enterprise theory, and the military court had cut back on that because it perceived

[00:49:23] Speaker 02:
in the use of the word enterprise some tension between RICO and the military commissions where it understood Congress to have deliberately excluded enterprise.

[00:49:33] Speaker 02:
But putting that aside, Your Honor, I guess I don't have, as to the reasons for the military, the courts, the charging discretion, that the prosecutors pursued a theory that Congress had blessed and that had been endorsed and that is in all seven of the current

[00:49:49] Speaker 02:
cases where charges have been referred in addition to the substantive crimes there.

[00:49:52] Speaker 02:
So this is something that Congress and the executive identified as a useful and important part of the aspect of the armed conflict.

[00:50:02] Speaker 02:
And it was certainly well within prosecutorial discretion to charge to take Congress up on that invitation.

[00:50:09] Speaker 07:
Let me follow up in a slightly different way.

[00:50:12] Speaker 07:
Is it your view on this case that Albalul could have been charged with aiding and abetting the war crimes of 9-11?

[00:50:21] Speaker 07:
And relatedly, could he, after this case, were the en banc court to agree with the panel?

[00:50:32] Speaker 02:
I think it is

[00:50:34] Speaker 02:
I think it is quite possible that he could be charged with, for example, a joint criminal enterprise and perhaps with aiding and abetting.

[00:50:41] Speaker 02:
Whether the commission would convict or not, I don't know, but I think those would certainly be something that might be charged.

[00:50:50] Speaker 02:
But I don't think that that changes the question for this court.

[00:50:52] Speaker 07:
Is there any double jeopardy bar to that happening, actually?

[00:50:55] Speaker 02:
I haven't looked at the double jeopardy analysis, and it would depend, of course, what this court said.

[00:51:00] Speaker 02:
But I think the important thing here is that we have a conviction from a military commission jury.

[00:51:06] Speaker 02:
And the fact that the prosecution might or might not have pursued a different theory really, I think, is sort of a different question.

[00:51:12] Speaker 02:
The court has to face this.

[00:51:14] Speaker 06:
What Judge Pillard's question may be getting at, and I'm not trying to put words in her mouth.

[00:51:20] Speaker 06:
is, what is the necessity for proceeding in this manner?

[00:51:27] Speaker 06:
In other words, you cite cases from the Supreme Court saying that the law of war is flexible, responds to need, and the like.

[00:51:39] Speaker 06:
And so what is the need?

[00:51:42] Speaker 06:
Because, as I hear Judge Pillard's question,

[00:51:46] Speaker 06:
Rather than branching out into this other area, there were clear options available to the prosecution.

[00:51:56] Speaker 06:
And both Judge Henderson speaking for the in-bank court and I writing separately have tried to understand why this is necessary to the extent that military tribunals are an exception

[00:52:16] Speaker 06:
to Article 3.

[00:52:19] Speaker 06:
The need for that is to respond to the conditions of war.

[00:52:26] Speaker 06:
I understand the battlefield argument, but Judge Pillard is raising another issue that presumably avoids the encroachment concern that, at least for the panel here,

[00:52:46] Speaker 06:
was the underlying concern.

[00:52:48] Speaker 02:
So Your Honor, if I could respond to it, I think there are two aspects of your question that I'd like to answer.

[00:52:54] Speaker 02:
First is conspiracy itself.

[00:52:56] Speaker 02:
And I actually think, I believe it was Judge Pillard's question earlier to petitioner's counsel, that got at exactly why conspiracy is very important.

[00:53:04] Speaker 02:
In a situation in which there are, when the objects of the conspiracy are attacks on civilians and attacks on civilian objects and the like, it's very important that conspiracy be available so that the government need not wait till the

[00:53:16] Speaker 02:
the underlying war crimes were committed before it acts and charges.

[00:53:21] Speaker 06:
As to what... But we've already addressed that.

[00:53:23] Speaker 06:
Well, Your Honor, I think... Justice can define such an offense and Article III courts can try that offense.

[00:53:30] Speaker 02:
Okay, so that's the second part of your question.

[00:53:32] Speaker 06:
That's a crime.

[00:53:33] Speaker 06:
response based on the plain text of the Constitution.

[00:53:37] Speaker 06:
So you've got to go further to prevail, don't you?

[00:53:40] Speaker 02:
Your Honor, I don't think to prevail I need to, but to answer your honest question I do.

[00:53:45] Speaker 06:
I think actually Congress has made that judgment, but to answer your question, I think military commissions... ...and that Congress can make any domestic offense a matter for trial before a military commission when

[00:54:02] Speaker 06:
It's a time of war, and the person is, quote, an enemy combatant, close quote, which is a term that has evolved over time under the executive branch's definition.

[00:54:20] Speaker 02:
So Your Honor, the answer is no.

[00:54:21] Speaker 02:
But you've asked a number of questions, and I'd like to respond to them.

[00:54:24] Speaker 02:
And so let me do two separate things.

[00:54:27] Speaker 02:
First of all, with respect to why military commissions are important, I think they are important precisely because they offer, they reflect.

[00:54:35] Speaker 06:
That's not the question.

[00:54:36] Speaker 02:
OK.

[00:54:37] Speaker 02:
I had understood, Your Honor, to ask that question.

[00:54:38] Speaker 06:
I wasn't challenging.

[00:54:39] Speaker 06:
the importance of military commissions.

[00:54:42] Speaker 06:
I'm asking, when are they necessary?

[00:54:47] Speaker 06:
And that's been the Supreme Court's approach, both the plurality and the defense, and the dissent.

[00:54:56] Speaker 02:
So Your Honor, I think, first of all, they are necessary.

[00:54:59] Speaker 02:
They offer an important protection for the reality of the kinds of captures we're talking about here, where they offer things like the hearsay rules and Miranda.

[00:55:15] Speaker 02:
that don't reflect the realities of the battlefield in the same way as other prosecutions.

[00:55:21] Speaker 02:
Now, with respect to your question about whether any domestic crime could be moved to a military commission, the answer to that is no, as I've tried to explain.

[00:55:30] Speaker 02:
It has to be an enemy belligerent.

[00:55:32] Speaker 02:
It has to be in the context of and associated with hostilities.

[00:55:37] Speaker 02:
But again, Your Honor, I don't think that this case presents those outer limits.

[00:55:42] Speaker 06:
I'm trying to understand, I thought that was the thrust of Judge Tatel's questions.

[00:55:47] Speaker 06:
What are the limits to this concept of conspiracy to wake up tomorrow and all of these trials that are going on or motions being filed in the district court are no longer within the jurisdiction of the federal district court?

[00:56:02] Speaker 02:
So Your Honor, I think it's critically important, though, that this Court step back and be very wary of setting the outer bounds in a case that doesn't require it.

[00:56:10] Speaker 10:
I agree that we should not set the outer bounds.

[00:56:13] Speaker 10:
I totally agree with that.

[00:56:14] Speaker 10:
But we need to know what the consequences of our decision is.

[00:56:18] Speaker 10:
And so let me just follow up on my question about limits for just a minute.

[00:56:25] Speaker 10:
Suppose the government discovers in a Washington apartment

[00:56:30] Speaker 10:
Three individuals, four nationals, who are here lawfully.

[00:56:33] Speaker 10:
They have visas.

[00:56:35] Speaker 10:
And in the apartment is they find explosives, weapons, al-Qaeda materials, and a map of the Washington Metro.

[00:56:45] Speaker 10:
Can those individuals be arrested and transferred to a military base and tried before commissioned for conspiracy?

[00:56:55] Speaker 02:
Your Honor, I'm sorry.

[00:56:56] Speaker 02:
Can you give me the facts of the hypo again?

[00:56:58] Speaker 10:
The government arrests four individuals in a Washington apartment.

[00:57:04] Speaker 10:
And they have explosives, weapons, guns, al-Qaeda materials from online al-Qaeda materials about terrorism and a map of the Washington metro.

[00:57:18] Speaker 10:
Can they be charged with conspiracy and transferred to a military base and tried before a military commission?

[00:57:25] Speaker 02:
Your Honor, I think it would depend on a number of factors, including whether they were aliens, whether they were... They were, I just told you.

[00:57:31] Speaker 10:
They were aliens on even a lawful visa.

[00:57:35] Speaker 02:
Your Honor, I don't know the answer to that question.

[00:57:39] Speaker 02:
I assume that the answer

[00:57:41] Speaker 02:
It seems like that would be enough to charge conspiracy to violate a war crime if there were evidence that they were going to attack civilians.

[00:57:49] Speaker 10:
But can I... Yes, but of course it's enough to charge conspiracy.

[00:57:52] Speaker 10:
It's a classic conspiracy.

[00:57:54] Speaker 10:
My question is... Conspiracy to commit war crimes.

[00:57:56] Speaker 10:
Yeah.

[00:57:57] Speaker 10:
blowing up the Washington Metro.

[00:57:59] Speaker 10:
Now, is it the government's view that there's enough authorization in terms of armed conflict and possibly identifying these people as enemy belligerents to charge them in a military commission?

[00:58:19] Speaker 10:
That's my question.

[00:58:20] Speaker 02:
So, Your Honor, I think that might well be enough.

[00:58:23] Speaker 02:
Just as if we had encountered the 9-11 attackers as they were getting on the plane, that might have been enough.

[00:58:28] Speaker 02:
But I think it's important, Your Honor, that the Court understand that what we're talking about here is not at the outer boundaries.

[00:58:34] Speaker 02:
Mr. Bouloul was not, in fact, captured in the United States.

[00:58:37] Speaker 02:
We understand that.

[00:58:38] Speaker 10:
But my question, I asked you my question in terms of our need to understand the consequences of a decision.

[00:58:44] Speaker 10:
I totally agree with you that the hypothetical I gave you is not the Al Bouloul case.

[00:58:49] Speaker 10:
Suppose, let me just change one fact.

[00:58:51] Speaker 10:
Suppose instead of al-Qaeda material in the apartment, they found material from ISIS, ISIL.

[00:59:00] Speaker 10:
Extensive online material about domestic terrorism produced by ISIL.

[00:59:09] Speaker 10:
What about that?

[00:59:10] Speaker 10:
Could they be charged?

[00:59:10] Speaker 02:
I don't know the answer to whether the United States has taken a position on whether ISIL is engaged in hostilities against the United States.

[00:59:19] Speaker 10:
According to yesterday's New York Times, the United States has flown almost 1,400 missions against ISIL in Syria.

[00:59:27] Speaker 02:
Your Honor, that would be a question for the charging decision.

[00:59:30] Speaker 10:
But your theory is, but what you're telling me is that each of these cases under the government's theory, these conspirators could be tried, could be removed to a military base in the United States and tried before a commission, right?

[00:59:48] Speaker 10:
So if they were engaged in hostilities and enemy belligerence, that may well be the case, Your Honor.

[00:59:53] Speaker 10:
One other, I just have one other question.

[00:59:56] Speaker 10:
Could you say something about your view at this point about the standard of review we apply here?

[01:00:05] Speaker 10:
You say in your brief that Sheriff reinforces the view that the court hasn't created any exception for normal Article III cases, right?

[01:00:22] Speaker 10:
Yes.

[01:00:23] Speaker 10:
So do you think, before the panel, the government's view was we would review this de novo.

[01:00:32] Speaker 02:
Has that changed?

[01:00:33] Speaker 02:
Your Honor, the government's position is that the court should review per plain error.

[01:00:37] Speaker 10:
I think that... And how do you reconcile that with Sharif and Shor, where the court, although the personal side of the Article 3 issue had conceivably been waived,

[01:00:52] Speaker 10:
In both cases, the court went ahead and resolved the question as to whether there was a structural Article III problem.

[01:00:59] Speaker 10:
Don't we have to do that here?

[01:01:00] Speaker 02:
No, Your Honor, I don't think so.

[01:01:01] Speaker 02:
I think what happened in Sharif, what the court did at the end of its opinion, was remand to the Seventh Circuit to determine whether the Article III claim had been forfeited.

[01:01:10] Speaker 10:
But that's after the court had concluded that there was no structural Article III problem because of the way

[01:01:16] Speaker 10:
the agency was structured there, concluded that there was sufficient federal court or judicial branch oversight so that as long as it was done with consent, there wasn't an Article III problem.

[01:01:29] Speaker 10:
My point is that the court

[01:01:31] Speaker 10:
went ahead and resolved the structural Article III question.

[01:01:35] Speaker 10:
It decided de novo that there wasn't one.

[01:01:37] Speaker 02:
So I have two points on that, Your Honor, if I might.

[01:01:40] Speaker 02:
First of all, what the court did was remand to the Seventh Circuit to determine whether the objection had been forfeited.

[01:01:46] Speaker 02:
What was before the Seventh Circuit was the question about whether this was, in fact, a stern claim and whether there was consent at all.

[01:01:54] Speaker 02:
And what the Seventh Circuit said on remand was even assuming that this was an unconsented stern claim,

[01:02:01] Speaker 02:
that Sharif had forfeited that claim, which is exactly what the Supreme Court has suggested.

[01:02:07] Speaker 02:
Second, I think the broader point here, Your Honor, is really the one that I understood Judge Malletta had made, which is that what the cases about Shor and Sharif are getting at is something quite different.

[01:02:19] Speaker 02:
They're getting at the situation where if you honored consent and forfeiture, the Supreme Court would never be able to resolve the question.

[01:02:26] Speaker 02:
That is not the case here.

[01:02:28] Speaker 02:
This is a very different context coming up in the criminal context, where the reason there's a plain error issue is because there was a boycott by petitioner of the proceedings themselves.

[01:02:37] Speaker 02:
And certainly, these issues are being litigated in the subsequent military commission proceedings.

[01:02:42] Speaker 02:
And so the kinds of concerns that caused the court

[01:02:45] Speaker 02:
to exercise its discretion to take on the Article III analysis in those cases are really quite different.

[01:02:52] Speaker 10:
As you say to us, with all respect, I actually slightly disagree with that.

[01:02:56] Speaker 10:
Because the consent that the court was looking at in that there were two different elements of this in Sharif and Shor.

[01:03:05] Speaker 10:
One question was, had the person raising the Article III proceeding consented to participate in it, which they had?

[01:03:18] Speaker 10:
And then the second question was, having done that, did they waive their Article III objection?

[01:03:24] Speaker 10:
And in Sharif, as I read Sharif, tell me if you think this is wrong, I read Sharif as saying,

[01:03:30] Speaker 10:
He's waived the personal aspect of Article III.

[01:03:34] Speaker 10:
That's gone.

[01:03:36] Speaker 10:
But the court goes on and says, but there is a structural question.

[01:03:40] Speaker 10:
And that normal rules of waiver and forfeiture don't apply to those for good reasons.

[01:03:47] Speaker 10:
And then the court goes ahead and takes a look at the structure.

[01:03:50] Speaker 10:
And it says, it concludes, that where someone participates voluntarily or with consent in the administrative process,

[01:03:59] Speaker 10:
And there's sufficient federal court supervision of the process.

[01:04:03] Speaker 10:
There isn't a structural Article III problem.

[01:04:06] Speaker 10:
And then it sends it back to the Seventh Circuit to ask whether or not, with respect to the personal side of the question, he had in fact consented, or if not, whether he had forfeited his objection.

[01:04:17] Speaker 10:
That's the way I read the case.

[01:04:18] Speaker 10:
Is that wrong?

[01:04:19] Speaker 02:
So yes, I think it is, Your Honor.

[01:04:20] Speaker 02:
We read it differently.

[01:04:21] Speaker 02:
We think that what the court said was much more broadly that the Article III aspects could be forfeited, and that that's what the court said.

[01:04:30] Speaker 02:
And I think also the court is consistent with the way the court has read in Plout, has read Shor, which is to say Shor is about an exercise of the court's discretion.

[01:04:40] Speaker 02:
And if I could get to that

[01:04:41] Speaker 02:
Even if, Your Honor, you disagree with me on this.

[01:04:45] Speaker 02:
The question before the court is, is this the kind of case where you would like to exercise your discretion to reach that?

[01:04:50] Speaker 02:
Now, petitioner argues that you should because of the importance of the issue.

[01:04:57] Speaker 02:
But I would suggest that actually the exercise of discretion runs in exactly the other direction.

[01:05:01] Speaker 02:
which is to say, in an issue that has already deeply divided the court, that is, principles of constitutional avoidance and issues about setting the policy for the conduct of our wars would suggest that this court really hesitate before exercising its discretion to reach an issue that it didn't have to reach because the issue wasn't raised by petitioner below.

[01:05:24] Speaker 02:
And so to the extent the court believes that there is discretion, I think that's surely what Plout and Schor stand for, that at most the court has discretion to reach the structural issues.

[01:05:33] Speaker 02:
This would be a case where we really shouldn't do so.

[01:05:35] Speaker 10:
And the reason you think we shouldn't exercise our discretion is because this is a question of a difficult constitutional issue.

[01:05:43] Speaker 10:
And since it was not raised, we shouldn't answer it.

[01:05:46] Speaker 02:
I think that the court should then decide it on a plain error.

[01:05:49] Speaker 02:
I think that's exactly right.

[01:05:50] Speaker 02:
I think that is what principles of constitutional avoidance are about.

[01:05:54] Speaker 02:
What the panel decision did was really set United States military policy and the use of military commissions for all wars going forward, providing an international veto to what- How do you respond to your opponent's argument that even under plain error, Baloo prevails?

[01:06:09] Speaker 02:
So, Your Honor, I think that that argument really holds no force and actually is refuted by Belul I. This case is easier than Belul I because what Congress has done is acted to remove the law of war limit that was on the executive branch authority in 1821 in Article 15, which the court in Hamdan recognized was an express limitation

[01:06:31] Speaker 02:
on the executive branch authority.

[01:06:33] Speaker 02:
So the question here is whether it's plain out or not when you're in category three of Youngstown, not when Congress has put an expressed limit on the executive branch authority, but when Congress and the executive branch have joined together to say that something can be tried in a military commission.

[01:06:54] Speaker 10:
Does Youngstown apply when we have a separation of powers question involving the power of the judiciary?

[01:07:00] Speaker 10:
I said, does Youngstown apply when you have a separation of powers question involving the judiciary?

[01:07:07] Speaker 10:
Why would the agreement of the President and the Congress affect the court's view of the question of whether an article is encroaching on Article 3 jurisdiction?

[01:07:20] Speaker 02:
So here's what I would say, Your Honor, is both Justice Kennedy's opinion and Justice Stevens' opinion in Hamdan both referenced this as an article, as a category three case, and thought that was very relevant to the analysis.

[01:07:31] Speaker 02:
It's not dispositive, as Your Honor suggests, but the judgment of the political branches and exercise of the war powers does seem to me to implicate exactly the kinds of concerns that Youngstown was interested in.

[01:07:44] Speaker 07:
Mr. Goff, finish your point.

[01:07:47] Speaker 07:
No, it's fine.

[01:07:50] Speaker 07:
I'm curious about the scope and nature of your argument about the American common law of war, because I heard you just say earlier today that conspiracy, NCOE conspiracy is not yet recognized in international law, and it wasn't clear to me entirely from your briefing that you were arguing that the American

[01:08:11] Speaker 07:
common law of war in practice is an effort to achieve recognition in international law by the international community, or whether it's just part of the domestic separation of powers jurisprudence.

[01:08:25] Speaker 07:
And if it is the former, if it's the United States' foray into an effort to push the boundary of international law, I understand that.

[01:08:35] Speaker 07:
But I find it quite surprising as a position for the United States to take because, of course, as I'm sure you've considered, that would mean that other nations, if we prevailed in the international law of war recognizing Kuwait conspiracy, that would really put our people and our military in some jeopardy.

[01:08:57] Speaker 07:
And so I just want to understand what role you think and what limits the American common law of war, as you've cast it in this case, plays.

[01:09:07] Speaker 02:
So you are a couple of things.

[01:09:08] Speaker 02:
First of all, the reciprocity concerns that your honor identifies are real.

[01:09:12] Speaker 02:
But we agree with the point Judge Kavanaugh made in Balua, which is to say they are real.

[01:09:16] Speaker 02:
That's the reason why the United States complies with its international obligations.

[01:09:20] Speaker 02:
But that's a judgment for Congress to make.

[01:09:22] Speaker 02:
And it is the judgment that Congress considered.

[01:09:24] Speaker 02:
The reciprocal implications are reflected throughout the debates on the 2006 act.

[01:09:30] Speaker 02:
And it is something that Congress considered and that the executive branch is considered and made that judgment.

[01:09:35] Speaker 02:
As to exactly what we think the law of war, the relevant law of war is, what we've said is law of war is the international law of war as supplemented by the experience and practice of our wars and our wartime tribunals.

[01:09:46] Speaker 07:
I read that time and time again, but it sounds, I mean, as I've always understood the American practice, is the reason our courts and we and our commentators, OLC, Attorney General, Speed, look to the American experience is because it's our precedent about international law.

[01:10:05] Speaker 07:
And you're making a different argument.

[01:10:06] Speaker 02:
So I think I am, Your Honor.

[01:10:08] Speaker 02:
I don't think that that's a fair reading of how the court in Hamdan or the court in Kirin really approached this.

[01:10:13] Speaker 02:
In other words, it's possible to say, I think, as Your Honor's question suggests, that in fact, you look to American law because you're just trying really to figure out what the international law is.

[01:10:25] Speaker 02:
But I don't think that's a fair reading of what the court actually did.

[01:10:28] Speaker 02:
The court didn't look to French and German and Dutch traditions.

[01:10:32] Speaker 02:
What the court did was spend page after page looking at the American precedents and the American law of war.

[01:10:38] Speaker 02:
And then at the end in Hamdan, in the plurality opinion, said, yes, international law confirms that.

[01:10:44] Speaker 02:
I think what the court was reflecting is that the common law of war is something that has always been very much a part of our

[01:10:51] Speaker 02:
military commission experience, and it's relevant to the Article 3 analysis.

[01:10:54] Speaker 02:
Article 3 is a situation in which, I'm sorry, I could just finish the sentence, in which history matters, and the kind of history that we're talking about here is relevant to the court's Article 3 analysis today.

[01:11:05] Speaker 02:
I'm sorry, Judge Odders.

[01:11:06] Speaker 06:
I was just going to say, didn't all that discussion arise in the context of trying to decide whether or not our American tradition

[01:11:14] Speaker 06:
as contrary, that we had rejected some offenses that the international law of war had.

[01:11:21] Speaker 02:
So no, I don't think that that's at all a fair reading of Quirin, Your Honor.

[01:11:25] Speaker 06:
Well, Quirin almost says that verbatim.

[01:11:28] Speaker 06:
And then the plurality just builds on that.

[01:11:31] Speaker 06:
And as you yourself just said in Hamden, the plurality says it confirms.

[01:11:37] Speaker 06:
It doesn't go beyond.

[01:11:39] Speaker 02:
Well, I think what it said, it confirms that it's not within the law of war.

[01:11:42] Speaker 02:
A number of the questions today insert the word international, which I don't think is in those opinions.

[01:11:47] Speaker 02:
But a couple of points on both Kiran and Hamdan, Your Honor.

[01:11:50] Speaker 02:
First of all, Kiran makes very plain on pages 45 and 46 that it is not articulating the outer bounds of the executive authority.

[01:11:58] Speaker 02:
In fact, what it says is we refuse to identify the outer bounds because this is plainly within.

[01:12:04] Speaker 02:
those bounds.

[01:12:05] Speaker 02:
Second is the point that I made earlier, which is that both Kiran and Hamdan were operating in a situation in which the court viewed Congress as having placed a constraint through Section 821, Article 15, that military commission proceedings had to be under the quote

[01:12:21] Speaker 02:
law of war.

[01:12:22] Speaker 02:
That is this precise constraint that Congress removed in 2006 from these military commissions.

[01:12:28] Speaker 02:
And so I do think that it's a very different analysis that the court is going through now, now that Congress has acted, from what the court was doing in Kirin and what the court was doing in Handan, and that's not a surprise.

[01:12:40] Speaker 02:
What the court said over and over in Hamdan, both the court and the plurality, was we're analyzing this at least in the absence of congressional action.

[01:12:49] Speaker 02:
Congress hasn't acted to define.

[01:12:51] Speaker 02:
And Kieran had said Congress hasn't crystallized the requirements of the law of war.

[01:12:56] Speaker 02:
What all of those decisions are doing, I submit, is asking Congress to weigh in precisely because the Supreme Court has recognized

[01:13:04] Speaker 02:
and that this is an area where the answer isn't just, we look to the commentators on international law and figure out what they think.

[01:13:10] Speaker 03:
The baseline, arguably, should be the text of Article III, which contains no exception for military commissions.

[01:13:19] Speaker 03:
And then that argument would go, Kieran carved out an atextual exception to Article III, but we should narrowly construe it because it is an atextual exception.

[01:13:31] Speaker 03:
How do you respond to that?

[01:13:32] Speaker 02:
Your Honor, I think that Kieran establishes that exception as in that what the court has said is that Article III reflects historical practice, and that regardless of whether you construe it broadly or narrowly, we think that this conspiracy, because of the long practice and tradition and because of the ties to international law, would fall within what the court

[01:13:55] Speaker 02:
expressed as the exception for military commissions.

[01:13:58] Speaker 02:
When you look at Yamashita and you look at Kirin, what I think you see is an approach to the question under Article 3 that's quite contrary to the one petitioner advancing here today.

[01:14:10] Speaker 02:
It's one much more of deference, it's one much more of flexibility, and it's one much more of allowing the United States to lead in these areas.

[01:14:19] Speaker 02:
And I think that those cases, I think, are the ones which suggest that

[01:14:25] Speaker 02:
that whether you view that exception narrowly or broadly, it's firmly established, and the history and the way the Supreme Court has approached it say that this falls squarely within it.

[01:14:36] Speaker 03:
One other question on standard review.

[01:14:38] Speaker 03:
I would have thought, as the petitioner's brief says, the constitutionality of the military's jurisdiction over a particular offense is always reviewed de novo because it's a question of jurisdiction.

[01:14:49] Speaker 03:
Kieran refers to it on page 25 as jurisdictional.

[01:14:53] Speaker 03:
the authority of the tribunal over the offense or the subject matter.

[01:14:59] Speaker 03:
seems to be quintessentially jurisdictional in the kind of thing that ordinarily, at least, would not be waivable or subject to being forfeit.

[01:15:06] Speaker 02:
So, Your Honor, I guess we think that this is something that the court in Volule addressed.

[01:15:12] Speaker 02:
The court said that the MCA expressly confers jurisdiction on military commissions to try to charge defenses.

[01:15:19] Speaker 02:
The question whether that act is unconstitutional does not involve the court's statutory or constitutional power to adjudicate the case.

[01:15:25] Speaker 03:
The question is whether article.

[01:15:27] Speaker 03:
The larger question is, does Article 3 confer jurisdiction on military tribunals over this kind of offense?

[01:15:35] Speaker 02:
And so, Your Honor, I think the answer to that is actually sure.

[01:15:38] Speaker 02:
Remember, in sure, there was a challenge that was quite analogous, which is to say that the argument was that the case couldn't be brought before the CFTC.

[01:15:49] Speaker 02:
And what the court said there was not, this is subject matter jurisdiction, so we're done.

[01:15:54] Speaker 02:
The court went into the Article III analysis that I discussed with Judge Tatel.

[01:15:57] Speaker 02:
And obviously, you can take from that different things.

[01:16:00] Speaker 02:
But I think the one thing you can't take from that is the mere fact that there's a constitutional challenge to the assignment of jurisdiction to another forum outside of Article III.

[01:16:10] Speaker 02:
Is it self-subject matter jurisdiction that's just non-wavable and non-forfeitable?

[01:16:13] Speaker 02:
It's not how the court approached the question inshore.

[01:16:16] Speaker 02:
And it's not how this court approached it in belul, recognizing that your honor dissented from that forum.

[01:16:21] Speaker 02:
I have another standard.

[01:16:22] Speaker 09:
review question following up on my previous question about standard of review.

[01:16:28] Speaker 09:
I was surprised that the government didn't make more of the language in Kirin that we can only overturn the work of a military conviction if we are clearly

[01:16:40] Speaker 09:
convince that what the military commission has done is unconstitutional.

[01:16:44] Speaker 09:
You didn't give much emphasis to that even though Justice Thomas and Justice Scalia and Alito endorsed that.

[01:16:52] Speaker 09:
Am I over reading that?

[01:16:53] Speaker 09:
Is that not the right standard even if we go with de novo review?

[01:16:58] Speaker 02:
You haven't argued that.

[01:16:59] Speaker 02:
Well, I think, Your Honor, that what I would say is that that was the standard the Court adopted even when Congress had put a limit on the Executive Branch's authority.

[01:17:07] Speaker 02:
And part of our Youngstown argument is exactly that argument, that when Congress and the Executive have acted together, this Court should be quite wary and should require only the clearest evidence of error before it moves forward.

[01:17:19] Speaker 02:
Now, so I guess I think that

[01:17:21] Speaker 02:
we are in a stronger position than we were in Kirin because as I say that it really is important I think that what the court in Hamdan said was section 821 is a constraint and express limitation on the executive branch's authority and even in that context

[01:17:36] Speaker 02:
the court said what Your Honor alluded to in Kieran.

[01:17:42] Speaker 02:
I think this is a stronger case for whether you call it deference or whether you call it the court has to be firmly convinced that error has happened.

[01:17:51] Speaker 02:
I think this is a stronger case precisely because Congress has eliminated that constraint and precisely because Congress did so in response to the Supreme Court's invitation to do so with the Supreme Court suggesting that that would be relevant to their, quite relevant to their analysis.

[01:18:06] Speaker 07:
I know that we also, we invited you to address the standard of review.

[01:18:11] Speaker 07:
So perhaps I'm not surprised at the position that the government took, but it is a change of position, because before the en banc court, the previous time when we were here, we didn't decide this issue, but this issue was teed up.

[01:18:25] Speaker 07:
The government took the position that Albalul had forfeited the claim, the ex post facto claim, but not

[01:18:33] Speaker 07:
There was no argument about limitation to a plain error standard of review on this question.

[01:18:39] Speaker 07:
And before the panel, government counsel specifically said that he did not believe that it was forfeited, it was repeated, it was long colloquy over several pages of the transcript.

[01:18:52] Speaker 07:
No, this is not forfeited.

[01:18:54] Speaker 07:
This is subject to de novo review.

[01:18:56] Speaker 07:
And even in the

[01:18:58] Speaker 07:
military commission back when Colonel Gregory was presiding.

[01:19:02] Speaker 07:
We know that all those objections were spoken by him.

[01:19:08] Speaker 07:
They were not spoken through counsel.

[01:19:09] Speaker 07:
But Colonel Gregory said, as I understand what you're saying, maybe you're challenging the proceedings as unlawful.

[01:19:16] Speaker 07:
Perhaps the charge is unlawful.

[01:19:18] Speaker 07:
Maybe from your perspective, it doesn't state an offense.

[01:19:22] Speaker 07:
So that's the way I interpret your view.

[01:19:24] Speaker 07:
So the root of forfeiture seems to me

[01:19:27] Speaker 07:
to cut against the government arguing here that we should use Plain Error Review and then the subsequent litigation of the case by the government and I do appreciate your position that because this is a difficult issue Plain Error Review might be appropriate but

[01:19:47] Speaker 07:
I have thought that it wasn't a question until I read your brief that we were going to be looking at this de novo.

[01:19:52] Speaker 02:
So a couple of points, Your Honor.

[01:19:54] Speaker 02:
The thrust of Your Honor's question I'll agree with in a second.

[01:19:57] Speaker 02:
Let me just do a couple of preliminary points.

[01:19:59] Speaker 02:
First of all, I don't think to the extent Your Honor was suggesting that he had preserved it that we agree with that.

[01:20:05] Speaker 02:
The kind of colloquy that you just quoted from Judge Gregory is not sufficient to preserve the argument.

[01:20:13] Speaker 03:
Despite what he said.

[01:20:14] Speaker 03:
Despite what he said, Your Honor, because I don't think he said... I said this is similar to a motion dismissed for lack of jurisdiction.

[01:20:19] Speaker 02:
So I think, Your Honor, that what he said was that, remember, the question that he was being asked was, is this by showing up and do I waive my boycott, right?

[01:20:29] Speaker 02:
And what Judge Gregory said was, no, this is akin in that sense to a motion for lack of jurisdiction.

[01:20:38] Speaker 02:
But what Your Honor sees in the

[01:20:41] Speaker 02:
in the colloquy is that it's quite uncertain.

[01:20:44] Speaker 02:
He says, perhaps you're making this to the extent you're making that.

[01:20:48] Speaker 02:
Unless this court were to adopt a very different preservation rule than it has applied in the criminal context, I don't think that that's the kind of argument that could preserve a jurisdiction.

[01:20:56] Speaker 02:
And indeed, there was no suggestion that what Mr. Ballew was saying, gosh, if you just tried me in an Article III court, I wouldn't be boycotting.

[01:21:03] Speaker 02:
So I don't think that preservation is really the issue.

[01:21:08] Speaker 03:
The judge says this is an objection to the legitimacy of the military commission.

[01:21:12] Speaker 03:
And Beloul himself talks about the military, in essence, the military aspect of the proceeding.

[01:21:19] Speaker 02:
So, Your Honor, I guess I think, you know, the transcript, it's on page... It's not, it's confused.

[01:21:23] Speaker 02:
I'll grant you... Right, it's page 49 and 50 of the appendix.

[01:21:26] Speaker 02:
But then the government goes on and again and again throughout the... But then to get to the thrust of your argument, which is really, I think, has the government waived it.

[01:21:34] Speaker 02:
I mean, in response to the Court's question, our view is that plain error applies.

[01:21:38] Speaker 02:
With respect to what happened to the panel, there is the colloquy that Your Honor refers to that it's in the briefs.

[01:21:42] Speaker 02:
I think when you read the whole thing, there's a little more uncertainty in the colloquy than perhaps I think that last paragraph would suggest, but be that as it may.

[01:21:52] Speaker 02:
I think if the Court at the end, again stepping back I think, the real question for the Court is if you think

[01:21:58] Speaker 02:
that the government has essentially forfeited forfeiture.

[01:22:01] Speaker 02:
Then the court is left with two discretionary judgments.

[01:22:05] Speaker 02:
So which one trumps?

[01:22:07] Speaker 02:
And this goes back then to the point I made earlier and to the way Your Honor started the question, which is to say, to the extent the court believes it's in that box, which we don't think it is, but to the extent the court does, then the question is, is this the kind of case that the court should exercise its discretion to decide?

[01:22:23] Speaker 02:
And I think the principles for the reasons I said, and not just to repeat, but just to put the final point, to the extent the court has that discretion, to the extent the question is, should the court exercise that discretion, I think to act to constrain the war powers of the executive branch in a situation in which the court has already indicated some deep division in the expressed opinions already, I think those things counsel very strongly for not suggesting that the government has forfeited forfeiture in the way that Your Honor is suggesting.

[01:22:53] Speaker 01:
For the government to prevail, let's suppose we review this de novo, do we have to believe that, do we have to hold that any prosecution for NCOI conspiracy under this provision of the MCA

[01:23:13] Speaker 01:
comports with Article 3 or just this particular prosecution?

[01:23:19] Speaker 02:
Your Honor, the answer to your question is no, just this one.

[01:23:21] Speaker 02:
And I think it's very important for a number of reasons.

[01:23:23] Speaker 02:
First of all, the concern about NCOE conspiracy is the idea that tentative agreements and half-hearted gestures are the kinds of things that shouldn't be swept up in conspiracy.

[01:23:33] Speaker 02:
But that is not at all what we have here.

[01:23:36] Speaker 02:
What we have here is overt acts that involve military training at Al-Faruq, the swearing of Bayat to Bin Laden,

[01:23:41] Speaker 02:
the swearing of Bayat by the 9-11 hijackers, and acting as a personal or media secretary to Bin Laden.

[01:23:48] Speaker 02:
And we have, as Your Honor points out, no doubt that the 9-11 attacks happened.

[01:23:52] Speaker 02:
Whatever the concerns about a broad version of conspiracy or the conspiracy that approaches meal agreement or tentative understandings or anything like that, that is not what we have here.

[01:24:02] Speaker 02:
And so the answer to Your Honor's question

[01:24:04] Speaker 02:
much in line with my earlier point, is that no, what your honor should be deciding is this particular conspiracy and whether this particular conspiracy is one that the court should find troubling.

[01:24:17] Speaker 02:
And stepping back, I think that in co-eight conspiracy as a general matter is something that there is a history of trying.

[01:24:24] Speaker 02:
The Grenfell

[01:24:25] Speaker 02:
example in our brief, and both Kieran and Kolpa separately charged it.

[01:24:30] Speaker 02:
But again, to the extent the court has the concerns about the scope of NCOE conspiracy, this case doesn't present this.

[01:24:37] Speaker 01:
What's your response to your friend's argument that there was really, notwithstanding the wording of this specification, there was really no proof that the petitioner had foreknowledge of the 9-11 attacks?

[01:24:51] Speaker 02:
So I don't think it's our contention that he had foreknowledge of the 9-11 attacks, but I think our contention is that he agreed to commit the listed offenses, which include attacks on civilians and attacks on civilian objects and things like that.

[01:25:06] Speaker 02:
We did not, I don't think we attempted to prove that he had specific foreknowledge of the 9-11 attacks themselves, although those were an object of the conspiracy.

[01:25:18] Speaker 02:
There are no further questions.

[01:25:21] Speaker 02:
All right.

[01:25:21] Speaker 04:
Thank you very much.

[01:25:22] Speaker 04:
Well, as usual, we've let both sides go over.

[01:25:24] Speaker 04:
So we'll give you five more minutes for rebuttal.

[01:25:26] Speaker 04:
Thank you very much, Your Honor.

[01:25:28] Speaker 04:
Let's try to keep it within the five.

[01:25:30] Speaker 04:
I'll do my very best.

[01:25:34] Speaker 00:
I do have some more specific points in response to questions given to my friend and to me, but the point I think that needs to be just stated right up front is that the government has offered you no rule.

[01:25:48] Speaker 00:
It is demanding, according to its brief, the utmost deference to the political branch's judgments with respect to when

[01:25:55] Speaker 00:
The Article III courts can be put to the side in favor of military commission.

[01:26:00] Speaker 03:
I think its rule is that it suffices, maybe not be necessary, but suffices to show that it's firmly rooted in historical practice.

[01:26:08] Speaker 03:
And we can leave for another day a case where an offense is not rooted in historical practice.

[01:26:13] Speaker 03:
But enemy combatant in a war or hostilities and offense rooted in historical practice.

[01:26:19] Speaker 03:
So I think that's the limit.

[01:26:21] Speaker 00:
Well, I didn't hear that as a limit.

[01:26:23] Speaker 03:
I heard that as a... That's the limit that suffices leaving open for another day to argue about whether the historical practice is necessary in the event Congress wants to establish new offenses.

[01:26:35] Speaker 00:
Sure.

[01:26:35] Speaker 00:
Well, if that is their test, that's not the military commission exception the Supreme Court articulated in ex parte caring.

[01:26:43] Speaker 00:
And I can say that with great confidence, particularly on their effort now to say, well, Balool, he's a bad guy.

[01:26:51] Speaker 00:
He's an enemy combatant.

[01:26:52] Speaker 00:
It's obvious that we should be able to try him by a military commission, because the Office of Legal Counsel's own review of the legality of military commissions under ex parte cure, and this is cited on a footnote, I believe, with page 24 of our brief,

[01:27:05] Speaker 00:
says that the status of the offender is irrelevant with respect to law of war military commissions.

[01:27:10] Speaker 00:
And of course it has to be.

[01:27:12] Speaker 00:
Look at the Lincoln assassins.

[01:27:14] Speaker 00:
The actual assassin in that case was not an enemy combatant.

[01:27:17] Speaker 00:
He was an actor.

[01:27:18] Speaker 00:
And the idea that enemy combatants somehow creates a talisman that the government can wrap around an individual in order to put them in the military commissions is not supported by history.

[01:27:29] Speaker 00:
It's not supported by the text of the Constitution.

[01:27:32] Speaker 00:
And it's certainly not supported by ex parte Karen,

[01:27:35] Speaker 00:
And they seek the utmost deference in favor of the political branches, time of war.

[01:27:41] Speaker 00:
And we're not denying that.

[01:27:42] Speaker 00:
They are entitled to deference with all sorts of war-making powers.

[01:27:45] Speaker 00:
But the judiciary is a co-equal branch of government who has a monopoly on the law in this country.

[01:27:52] Speaker 08:
What would happen if Judge Taddle had asked a question of Mr. Gershengorn about what if international law

[01:28:00] Speaker 08:
had specifically considered and rejected.

[01:28:02] Speaker 08:
How would we know when, it's not like a Supreme Court of International Law out there, how would we know when international law has rejected something and in particular what would, I know your position here is conspiracy is clearly out, what would happen, what leash would Congress have and what limits would they have if it was actually

[01:28:25] Speaker 08:
directly ambiguous or contradictory rulings out there from assorted tribunals and scholars?

[01:28:30] Speaker 00:
I think in that circumstance, there may be some room for deference as long as Congress is not clear.

[01:28:37] Speaker 00:
Again, we're still only talking about Kieran's first condition.

[01:28:39] Speaker 08:
What is the room for deference?

[01:28:40] Speaker 08:
Is it that that would be Congress's power to define, sort of pick between competing international views of law or?

[01:28:47] Speaker 00:
So long as there's an established norm or offense, sorry, an offense under international law, but here we have rejection here.

[01:28:54] Speaker 08:
My hypothetical is you've got one person saying, heck no, it's never been, and it's not part of the law of nations or the law of war, as viewed by the law of nations, and another one says, sure it is.

[01:29:05] Speaker 00:
Well, here we have that rejection.

[01:29:07] Speaker 00:
We have that rejection at Nuremberg, which was predominantly administered by the United States.

[01:29:12] Speaker 00:
We have it at Tokyo, which was done under the direct supervision and control of General MacArthur, and candidly rejected very few arguments by the prosecution.

[01:29:21] Speaker 08:
And even looking to, again... My question is if you had a conflict.

[01:29:25] Speaker 08:
You had different, you looked at all your sources and it really was 50-50 down the middle and they're at diametrically opposite views.

[01:29:35] Speaker 08:
Never, no way this is international law.

[01:29:37] Speaker 08:
Sure it is, sure it is.

[01:29:40] Speaker 00:
If you had a diametric sort of opposition, perhaps Congress would have some deference to pick a side, so to speak, but here there is no side and the government admits that.

[01:29:50] Speaker 00:
Could I?

[01:29:51] Speaker 08:
I'm sorry.

[01:29:52] Speaker 10:
No, I didn't mean to interrupt you.

[01:29:54] Speaker 08:
I guess I want to get back to my original question to you is where in 1787 would they have thought Congress was going to look when there were no Nuremberg tribunals or Yugoslavia tribunals or any of the sources that have been used in this case?

[01:30:10] Speaker 00:
They would have looked to state practice and in fact George Washington when he tried Major Andre there was a question about how you could execute a spy.

[01:30:18] Speaker 00:
And Major Andre, because he was a British officer, asked to be shot.

[01:30:22] Speaker 00:
And George Washington referred that to his military lawyer at the time.

[01:30:26] Speaker 00:
And the military lawyer came back and said, under the law of nations, under state practice, under the law of nations, spies are to be hung.

[01:30:33] Speaker 00:
Therefore, he must be hung.

[01:30:35] Speaker 00:
And so this wasn't an exotic problem back then.

[01:30:38] Speaker 00:
The framers understood what international law was.

[01:30:40] Speaker 00:
They were comfortable with it.

[01:30:41] Speaker 00:
And they looked to it.

[01:30:42] Speaker 08:
Congress couldn't have said shoot rather than hang.

[01:30:44] Speaker 00:
Well, if Congress, I think, well, hanging was ignominious, and so if Congress wanted to sort of define, you know, to narrow international law, which, and to narrow international law to make it less severe or more consistent with our values, and I'll put an example that actually exists up, is the United States has reserved its, has strong reservations about incitement to commit genocide because of our First Amendment protections.

[01:31:10] Speaker 00:
And so that might be an area where Congress's power to define will exclude something that's part of international law, but brings it into the American context.

[01:31:18] Speaker 00:
If I can directly, though, address Judge Wilkins' question, respecting what we have here.

[01:31:23] Speaker 00:
What is this case about?

[01:31:25] Speaker 00:
And my friend said, well, the concern about agreements is letting innocent people be captured.

[01:31:30] Speaker 00:
No, that's not the concern about agreements.

[01:31:32] Speaker 00:
The concern about agreements is that proving them is a fundamentally judicial inquiry.

[01:31:37] Speaker 00:
And this case shows that.

[01:31:39] Speaker 00:
This was not a battlefield evidence case.

[01:31:41] Speaker 00:
They called cooperating witnesses who were serving time up in New York.

[01:31:45] Speaker 00:
They called FBI interrogators.

[01:31:47] Speaker 00:
They called forensic experts.

[01:31:48] Speaker 00:
They had a paid subject matter expert.

[01:31:55] Speaker 00:
It was a weak look.

[01:31:56] Speaker 08:
Same evidence to prove joint criminal enterprise or aiding and abetting?

[01:32:00] Speaker 00:
They may, but again, as my friend conceded, he said when asked whether Beloul could have been convicted for aiding and abetting, he said, I don't know.

[01:32:09] Speaker 00:
I don't know.

[01:32:10] Speaker 00:
And if the government doesn't know whether

[01:32:13] Speaker 00:
Al Bahlul could have been convicted for some substantive offense under some other theory that the government neither charged nor proved nor attempted to have the members fined, then this court doesn't know.

[01:32:24] Speaker 10:
In response to Judge Wilkins, I heard Mr. Gershengorn say this court doesn't really have to face the question of incohate or standalone conspiracy in this case, because that's not what this is.

[01:32:41] Speaker 00:
Well, that is what this is.

[01:32:43] Speaker 10:
Why don't you respond to that?

[01:32:45] Speaker 10:
He said there's this other evidence in the record that counsel identified.

[01:32:53] Speaker 10:
And so it's not just incohate conspiracy.

[01:32:57] Speaker 00:
Well, again, this court's normally not in the business of trying to piece through the record of trial to see what might have been proven had the government charged and instructed on it and had the members found it.

[01:33:08] Speaker 00:
Here the government committed itself early on to an inchoate

[01:33:12] Speaker 00:
traditional vanilla conspiracy prosecution in a trial that looked like a traditional inchoate vanilla conspiracy prosecution.

[01:33:21] Speaker 00:
The members found that after being instructed precisely that that was what they were supposed to do.

[01:33:25] Speaker 00:
And then today, my friend stands here and says, I don't know if we could have actually had the evidence to get him on anything else.

[01:33:31] Speaker 00:
And if he is saying they don't know today, this court doesn't know today.

[01:33:35] Speaker 00:
And this court should just read the record, read the charges.

[01:33:40] Speaker 00:
Sorry.

[01:33:41] Speaker 00:
Sorry, because at the end of the day, conspiracy is what's at issue in this case.

[01:33:46] Speaker 07:
Mr. Pardes, what do you make of the fact that the reference to conspiracy in the Military Commissions Act refers to victims?

[01:33:56] Speaker 07:
And in that way, it seems to be almost more of a codification of joint criminal enterprise, more aiding and abetting, than a codification of

[01:34:06] Speaker 07:
conspiracy.

[01:34:07] Speaker 07:
And I wonder if in some kind of constitutional avoidance if we should read it that way or... We haven't given that question a whole... The question for Mr. Gershengorn how he reads it.

[01:34:17] Speaker 07:
Maybe in fairness we should let him... Certainly that was not an issue here.

[01:34:21] Speaker 00:
The government went for the tradition.

[01:34:23] Speaker 00:
There was no question about victims.

[01:34:24] Speaker 00:
There was no measure of the sentence based on the impact to the victims of 9-11 attack.

[01:34:33] Speaker 00:
And so

[01:34:34] Speaker 00:
I mean, if that construction is available to the government in pursuing other sort of completed conspiracies, and that's sort of just a part of, if that's just a reframing of joint criminal enterprise, that may be okay, but that is so different from our case that I hesitate to take it.

[01:34:49] Speaker 07:
Why is it not a statutory defense on your part?

[01:34:53] Speaker 00:
I'm sorry.

[01:34:54] Speaker 07:
I guess it's because it wasn't raised.

[01:34:56] Speaker 00:
Sure, because certainly until this, conspiracy is a term of art.

[01:35:01] Speaker 00:
And so when Congress enacts conspiracy and the charges at trial allege conspiracy, the elements are all of conspiracy.

[01:35:10] Speaker 00:
we it's a conspiracy case this isn't in color conspiracy case the government has proceeded on that from the beginning and that's unconstitutional it it's under calendars is wilson it's unconstitutional the government admits it can't account i wasn't a defined punish clause case no but it was a article four case where the car uh... sorry was the administration of the district of columbia case which were congress has a far more you don't think the fine and punishes any relevance at all

[01:35:35] Speaker 00:
I think it has secondary relevance, because ultimately the second factor, and I hate to keep coming back to these, but I think it's important.

[01:35:40] Speaker 00:
In Cairn, they say the standard is twofold.

[01:35:43] Speaker 00:
Offense against the law of war, not a crime triable by jury.

[01:35:46] Speaker 00:
Conspiracy is a crime triable by jury.

[01:35:49] Speaker 04:
And for the government to sort of say, well, Congress... So is blowing up the World Trade Center a crime triable by jury, isn't it?

[01:35:58] Speaker 00:
Sure, but if it's a war crime under international law and its elements satisfy a crime under international law.

[01:36:05] Speaker 04:
But it's still triable.

[01:36:06] Speaker 04:
You're not suggesting that even the main conspirators or the main subject principles couldn't be tried in Article III court.

[01:36:16] Speaker 04:
No, but that's because there isn't a triable by jury.

[01:36:19] Speaker 00:
It certainly is, but here is a situation where there is a specific kind of crime that is firmly established as entailing a jury trial.

[01:36:26] Speaker 00:
I would just give this court the other example, the most salient example because there are cases or at least precedents on it is treason.

[01:36:34] Speaker 00:
Right, treason unquestionably deals with the war powers.

[01:36:38] Speaker 00:
It unquestionably deals with people who could be termed any combatants.

[01:36:42] Speaker 00:
There are many international offenses that look awful lot like treason.

[01:36:46] Speaker 00:
But it certainly could not be tried in the military commission.

[01:36:48] Speaker 00:
And in fact, when it was in the context of the Civil War, the convictions were thrown out because they were only triable by jury.

[01:36:53] Speaker 00:
And conspiracy is the same.

[01:36:56] Speaker 00:
Conspiracy is such a unique and, again, indicative federal crime.

[01:37:00] Speaker 00:
Let's pause and see.

[01:37:01] Speaker 00:
Has anybody?

[01:37:02] Speaker 03:
Yeah, a second ago you said that Congress may want to change international law to, I think you said, make it more consistent with our values.

[01:37:11] Speaker 03:
And that highlights for me a concern about your position, because you would, as a matter of U.S.

[01:37:18] Speaker 03:
constitutional law, establish international law as a limit for all time on the President and Congress's ability to

[01:37:25] Speaker 03:
use military commissions as part of the war effort.

[01:37:28] Speaker 03:
So if international law may not be consistent with our values, why should we put international law into the US Constitution as a for-all-time limit?

[01:37:38] Speaker 00:
Well, I would ask the framers that question, because they put defenses against the law of nations explicitly into Section 8, Clause 10.

[01:37:47] Speaker 00:
But if I can also get to this one point, and I think this quote may help, Your Honor.

[01:37:54] Speaker 00:
Oh, I'm sorry.

[01:37:56] Speaker 00:
It's from Inoue Yamashita.

[01:37:57] Speaker 00:
It's on page nine of our reply brief.

[01:38:01] Speaker 00:
And the government says, well, all the Congress has really done here is just taken the law of war requirement out of military commission jurisdiction.

[01:38:08] Speaker 00:
But I think it's important to remember that by doing that, they are essentially conceding that it's unconstitutional.

[01:38:14] Speaker 00:
Because Article 15, as construed both in Kerin and in Yamashita, reaches, quote, all offenses which are defined as such by the law of war

[01:38:23] Speaker 00:
and which may constitutionally be included within that jurisdiction.

[01:38:27] Speaker 00:
So Article 15 already reached to the outer limits of Congress's power.

[01:38:33] Speaker 00:
And so if the government is standing here saying that it can only win because Article 15 has essentially been reached even further, that's a concession that ultimately we agree with, is that the conspiracy charge in this case is plainly unconstitutional because it is an infamous crime and it's not an offense under the international law of war.

[01:38:52] Speaker 04:
No further questions will end with a point apparently the parties agree and the court will go on to struggle over the matter.

[01:39:00] Speaker 04:
The matter will be taken under submission.

[01:39:02] Speaker 04:
Thank you.